When it comes to paying (or not paying) employees, the cri de coeur of American business is not yes, we can but because we can.
We don't provide our employees with health care insurance because we're not required to. We pay them minimum wage because we can.
We don't pay our interns because they've been convinced by career placement counselors, their parents and American business, that there are so many over-qualified people to perform the largely clerical tasks they're "hired" to do that they have to work for free.
See PayGenY for all the many reasons this is actually, legally and morally wrong. And it pains me deeply to say that friends of mine who could afford to pay new college grads at least minimum if not a living wage, ask them to work for free because they can.
What has happened to our moral compass?
What has happened to our understanding that the wheel of fortune will always turn and that when it turns down for those at the top, it's a feast for sharks unless the fallen has treated his partners and subordinates as valuable members of a team, without whom he could not accomplish the job he's doing, let alone make the money and accrete to himself the power he has taken for himself.
I have seen this in action too many times for it to be a one-off.
The first shall be last.
It was ever and will ever be so.
The President of PETA, interviewed by Alec Baldwin in his must-hear podcast, Here's the Thing, noted that American business justifies animal cruelty so long as it can connect mistreatement to a penny or two increase in the price of its stock. The same is true for corporate human capital. The shock of the recession and its aftermath (socialize the loss and privatize the gain) has caused everyone from highly compensated senior equity partners to the last-hired guy in the mail room to react the way rats do when the man in the white lab coat throws the switch on the electrified grid beneath their feet.
They either attack one another or go catatonic.
Big Law in particular is treating its people very badly because it can. The people from HR, sometimes with security officers beside them, are walking up to legal secretaries with twenty-five to thirty years of experience and terminating them on the spot, hovering over them as they pack their things and walking them out the door.
I call this the new American perp walk.
If HR knew what it was doing, it would know this - people's claim-making inclinations are highly colored by the manner in which they are terminated. As Joan Didion so eloquently reminded us,
We tell ourselves stories in order to live. The princess is caged in the consulate. The man with the candy will lead the children into the sea. The naked woman on the ledge outside the window on the sixteenth floor is a victim of accidie, or the naked woman is an exhibitionist, and it would be 'interesting' to know which. We tell ourselves that it makes some difference whether the naked woman is about to commit a mortal sin or is about to register a political protest or is about to be, the Aristophanic view, snatched back to the human condition by the fireman in priest's clothing just visible in the window behind her, the one smiling at the telephoto lens. We look for the sermon in the suicide, for the social or moral lesson in the murder of five. We interpret what we see, select the most workable of the multiple choices. We live entirely... by the imposition of a narrative line upon disparate images, by the 'ideas' with which we have learned to freeze the shifting phantasmagoria — which is our actual experience.
If we terminate employees disrespectfully, subject them to humiliation and treat them unjustly, the story they will tell themselves about their recollected work experience will be one of disrespect, humiliation, and injustice. If we terminate them respectfully, with sufficient notice and with offers to help them make the transition, the story they will tell themselves about the past will reflect the present and claiming-activity will be reduced.
The LOC describes this archive as a “selective collection of authoritative sites” associated with law schools, research institutes, think tanks, and other expertise-based organizations. “These blogs contain journal-style entries, articles and essays, discussions, and comments on emerging legal issues, national and international,” the LOC says.
Despite what the description says, several practitioner blogs, not affiliated with any school or organization, are included in the archive. Among them are Marc Mayerson’s now-defunct Insurance Scrawl, Howard Bashman’s How Appealing, Curacao lawyer Karel Frielink’s Karel’s Legal Blog, Victoria Pynchon’s Settle it Now Negotiation Blog, Scott Greenfield’s Simple Justice, Ken Lammer’s CrimLaw, Diane Levin’s Mediation Channel, and Jeff Beard’s LawTech Guru.
In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”
In a post this week at the Law Library of Congress blog In Custodia Legis, Matthew Braun, senior legal research specialist, provided further background on the archive. It was created, he says, “so that the legal events detailed and analyzed in the blogs of today can be studied for years to come.”
"Studied for years to come."
The LOC describes the archived law blogs as a selective collection of authoritative sites associated with law schools, research institutes, think tanks, and other expertise-based organizations.
Even sweeter but hilarious to anyone who survived "intro week" in law school. The dictate then was as follows: First you cite Harvard and Yale. Or as my Yalie husband would correct, Yale, then Harvard. After that, you took a trip through the legal Ivy League. Only if you were truly desperate did you cite, say, the Constitutional law professor at Chapman who is the only ultra-conservative voice against SCOTUS' recent Constitutiuonal stamp of approval on modernity (think Prop 8, DOMA).
I'll add links to all these other great legal blogs anon. In the meantime, click on Ambrogi's post for all the links. And thanks to my colleague, Don Philbin, for emailing me the link with a note of congratulations. His ADR Toolbox is must-read for all ADR practioners, most particularly those who appear before mediators and arbitrators.
As Colin Powell said, the most important information to gather in international diplomatic negotiations is "the other guy's decision cycle." And Don is the smartest ADR practitioner in the room. Know his decision cycle and your facilitated negotiations will deliver more than you ever dreamed they could.
Job candidates are rarely in a position of power as interviewers decide the fate of their future career prospects. Yet, the winning strategy in these situations is thinking that one has power, in spite of the situation. As a candidate, how can you engineer a powerful mindset? Well, a simple trick is to remind yourself about a time you had power over a situation right before an interview, and invoke the precise feelings associated with that memory – feelings of confidence and competence, as well as decisiveness during decision making.
One of my recent research projects, Power gets the job: Priming power improves interview outcomes co-authored with Joris Lammers (University of Cologne), Derek D. Rucker (Northwestern University) and Adam Galinsky (Columbia University) tested just that idea: as part of a session of individual mock interviews, we assigned business school applicants to one of three conditions. In the first condition, applicants wrote a short essay about a time they had power just before entering an interview. In the second condition, applicants also wrote an essay, but this time about a time they lacked power. Finally, the last group did not write anything.
Then, we asked interviewers the likelihood that they would accept the candidate into a business school. When candidates went straight to the interview, interviewers accepted 47.1 percent of the candidates. However, the admission rate went up to 68 percent for those people in the group who wrote an essay about a time they had power, and fell to a low 26 percent for those who wrote an essay about a time they lacked power. Importantly, interviewers were unaware of the power manipulation we had given candidates. Thus, merely recalling an experience of high power increased candidates’ likelihood to be admitted by 81 percent compared to baseline and by 162 percent compared to those who recalled an experience of powerlessness.
Of course, there are other ways to engineer personal feelings of power. For instance, candidates can wear objects that make them feel powerful, such as a watch or a particular bag - anything that links you with feelings of power.
2. “Behave powerful”
Power is not only a mindset; it is also a behaviour. Small, almost unconscious moves signal power to an audience and can significantly change the outcome of an interview. In her recent TED talk, Amy Cuddy (Harvard University) provides an excellent summary of how non-verbal language can have a profound effect on how people are judged in contexts as varied as hiring or promotion interviews, a sales context or even a date. As such, physical poses such as wrapping legs, hunching or relying on one’s arms are many subtle signals of powerlessness that cast doubt on what candidates say, regardless of the content of the conversation.
The Virtuous Circle of Power
Interestingly, adopting “power poses” does not only affect how interviewers judge candidates, but also ironically reinforces candidates’ feelings of power. In recent research, Li Huang from INSEAD and colleagues had participants take powerful (for example, expansive postures) or powerless (constricted postures) poses and found the former behaved more powerfully than the latter, by taking action more often and thinking more abstractly, two well-known consequences of power. So, behaving in a powerful way is not only important for how interviewers perceive candidates, it is also a key driver of how candidates will behave!
No matter where I go to teach negotiation strategies and tactics, people tell me they feel as if they're bargaining from a position of weakness. You'd think the lawyers at Intel, Qwest Communications, Warner Brothers and Sony Pictures Entertainment or the engineers and managers at Kraft Foods, all of whose people I've trained, would drape themselves in the power of their corporate brand.
Not so. More than 80% raise their hands when I ask them whether they're negotiating from a position of weakness.
That, I suppose, is because I haven't trained those companies' CEO's, GCs or Boards of Directors. But even then I'll bet I could flip a coin on their answer to the question. The Boards of Directors, after all, have to answer to shareholders and federal governmental agencies. CEOs must answer to their Boards and GCs to the CEO. Sometimes all of them feel intimidated by the lady in HR because Human Resources is the hot nuclear core of conflict in the organization.
What, then, can we do to increase others' perceptions that we have power, a perception that is more than half of our bargaining strength.
3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.
4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).
5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.
6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.
7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?
8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.
9. You're a business person. You negotiate business deals every day. Your lawyer does not.
10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.
Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."
As much as we'd like objectivity on the front page of our morning newspaper, all story telling, particularly narratives framed by headlines, direct our attention to some "facts" more than others.
The frame tends to suggest that the reader respond favorably or unfavorably to the subject of the tale. That's why framing and re-framing one's negotiation proposals are such critical bargaining skills. We want to pre-dispose our negotiation partner to favorably respond.
Before Bombs, a Battered American Dream, suggests a multitude of causal factors leading to an inexplicably heinous act of terrorism - planting and then triggering a pressure-cooker IED among the Boston Marathon spectators who had gathered at the finish line to celebrate human commitment, endurance, and tenacity.
Among those factors, the Times notes Tsarnaev's "embrace of Islam" which had grown "more intense" before the suspicious trip to Dagestan, a "religious identification [that] grew fiercer" as he "abandon[ed] his once avid pursuit of the American dream."
Family dysfunction also looms large in the Times narrative. Like many other mass murderers, Tsaranev's path to destruction was preceded by isolation and separation from his family. His mother returned to Russia in the face of felony shoplifting charges, following in her husband's footsteps. His beloved brother had left for college. These separations mimicked the more desparate ones in the family's history marked by war and hardship.
We were in hour ten of a multi-party mediation convened to settle a million dollar copyright dispute among three Los Angeles garmentos. Counsel for the target defendant was demonstrating righteous indignation for my benefit. He was packing his trial bag, fuming about the other parties’ bad faith and the waste of time the mediation had been.
I don’t highly recommend this negotiation tactic but I see it a lot.
“We’re leaving,” counsel shouted, gesturing that his client should follow.
I too have a temper. I don’t know a litigator who doesn’t. But I tuck it down deep when I’m playing the role of “neutral.”
“I don’t think that’s a good idea,” I responded in the low, slow, patient tone of voice you use with over-excited children and frightened animals.
“And why do you think that?” he snarled.
“Because the first thing your client said to me was that failure here today was not an option. He’s broke. He’s nearing retirement. He’s beaten. He can’t sleep at night. He needs me to get the best deal possible and then he desperately needs to take a vacation.”
The client, who hadn’t moved a muscle since this exchange began heaved an audible sigh of relief and said to me “thank you so much. I’ve been saying that for two years and no one has ever acknowledged it before.”
This is where legally astute resolution of litigation by executives and managers comes in.
A mistake that lawyers sometimes make is failing to ask for what they want. If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. They can be used independently or they can be combined with mediation.
I was once hired to give a neutral evaluation in a commercial real estate case. The parties told me at the outset that while they were interested in exploring settlement they were really interested in my opinion on the merits. So we conducted a mediation that included a neutral evaluation. Not only did this meet their needs, the evaluation was given in a confidential setting and could not be used as evidence if they did not settle.
The point is that both parties wanted the process to be evaluative. It was not a situation where one party was expecting the mediator to be evaluative and the other party wanted the mediator to refrain from doing so.
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!
I'm dashing this post off between mediations. Here are statements I will not have to hear you make if you are a lean, mean negotiation machine.
"If she'd asked for a reduction in her commercial lease rate in light of the downturn in the economy, we would have negotiated a decrease in her yearly rent."
"If they'd come to me to discuss the matter before they hired lawyers, we could have resolved this ourselves. Now that I've spent $___________ in attorneys' fees, I don't see anyway of coming to a resolution short of trial."
"I don't respond well to ultimatums. Tell them we'll see them in Court."
(requiring me to reframe the "ultimatum" as an effort to suss out their bottom line and to say, for the ten thousandth time, "if you're moving in the direction of one another, there's still a possibility that your true bottom lines overlap so let's keep negotiating")
"I'll be frank with you, my true bottom line is . . . . . "
No no! Please do not tell the mediator your "true" bottom line. If you're telling her the truth (something she does not assume) then she will drive the negotiation toward your bottom line. Any mediator will. They can't help it. Any number that enters the negotiation environment in a circumstance of uncertainty about value will serve as an anchor, strongly influencing the outcome in every exchange of offers and counter-offers.
On the other hand, if you think you can fool her with a false bottom line, you are a brown belt and may proceed.
"They will never agree to my terms."
If the mediator says she doesn't agree with you, listen up! She's holding confidential information from the other side. Just as importantly, only you know what your actual terms are, so no one can predict the future of any negotiation because no one knows what their bargaining partners' true bottom lines are. Don't get ahead of yourself. Be patient. As long as you're moving in the direction of one another, a deal is more likely than not.
"They're negotiating in bad faith."
There's no such thing as "bad faith negotiation."
Are they lying to you about a material term of the potential agreement or facts that drive your decision? If so, put it in the deal memo as a condition precedent to your obligation.
"He's scum (a liar, evil, contemptible, etc.)."
That may be true. It should not, however, keep you from entering into a deal that reduces your economic risk to an acceptable level at a cost that makes business sense to you.
"O.K., but they have to pay your full fee."
I've just helped the parties settle a nine-figure case with five plaintiffs and twenty defendants and you want them to pay my $5,000 fee. You're quibbling over $2,500 after paying $34 million to settle this case? You're trying to save face, which is fine. But is it worth making your opponent lose face and potentially blowing up the deal you've just spent fifteen hours and tens of thousands of dollars negotiating?
every time we hear the name “McCourt” these days, our heart leaps a little. Who cares if the ridiculous divorce travails of Jamie and Frank end up wrecking the team, after all? The worse the Dodgers fare, the more likely it is that fans will shift their allegiances to the superior team that plays 30 miles down I-5.
In any event, according to this AP report, the McCourts are finally softening, it seems, and taking the whole debacle into mediation.
A person familiar with the case told the AP late Tuesday that the two sides would meet in a downtown Los Angeles courtroom Friday. Click here for the take from Josh Fisher’s Dodger Divorce blog.
As a member of the Los Angeles Chapter of the Federal Bar Association and incoming Chair of the FBA's ADR Section, I'd like to wish the Central District's new Settlement Officer Panel Czar a hearty welcome to the District and to Los Angeles.
Having served on the ADR panels of the U.S. District Court for the Northern District of California and other Bay Area superior courts, Ms. Killifer is well acquainted with the challenges facing federal attorneys, mediators, administrators and the judiciary in running the robust and highly qualified settlement officer panels that the U.S. Courts are known for.
Ms. Killefer served as an Assistant United States Attorney in San Francisco from 1989 to 2001. She served as a Deputy Chief, Civil Division, 1994-1998, and as Chief, Civil Division, 1998-2001. Prior to joining the U.S. Attorney’s Office, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington D. Parker (D.D.C.). She received a B.A. from Stanford University and a J.D. from the Vermont Law School.
Welcome Gail!! We have a great community of neutrals here, all of whom are all eager to get to know you (without overwhelming you with Welcome Wagon invitations) and to assist you in any way we can with your challenging and important new position.
not only between individuals, but in a context, culture, and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.
For as long as I have been mediating, there has been an active, on-going, often bitter dispute between the Los Angeles Superior Court and most professional (not hobbyist) mediators who are trying to make a living based upon their negotiation and conflict resolution education, training and experience, many of them lawyers with decades of litigation and trial experience. I will not go into the history of the pro bono panel and the disputes about its provision of free mediation services to all comers, but I can provide references if you are interested in exploring the conflict./ *
I am only the most recent canary in the mine shaft of the LASC's pro bono mediation panel. By canary in this instance I refer to my own keenly felt sense of pride and sensitivity to all forms of injustice, including the economic variety. Though I take my own part in having responded irritably to a request by two AmLaw 100 law firms to mediate their $10 million antitrust action gratis while they charged their clients upwards of $400 per hour, that irritation must be understood not only in the context of the unresolved conflict between the Court and local mediators, but also the undeniable fact that many attorneys and their clients take unfair advantage of the mediators who volunteer their time on behalf of the Court. And that they do so without giving it a second thought.
This canary, who owes so much of her training to the opportunity to serve on the pro bono panel, must now take flight. I'm good at what I do and I have spread the word about the quality of my services far and wide. If I am not able to make what I consider to be a good living as a mediator, I will do what I have always done, find other sources of gainful employment and other streams of income without entirely abandoning what is to so many simply a hobby and to others a desperate attempt to scratch a living out of a fallow field.
Why attorneys are doing themselves and their clients a disservice whenever they permit the Court to simply "assign" them a random mediator (we are not widgets) tomorrow.
If your intent is transformation, you can get there by reading the telephone directory. ~ Unknown
My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution. That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and by providing assurances that the mediation room is a safe environment in which to have candid conversations about the dispute without fear of ridicule or other emotional attacks.
What I had done here was create an atmosphere of distrust and peril. Even before one of the parties telephoned me, I was naturally beginning to feel remorseful. The telephone conversation that did occur could not have inspired trust in a mediator who seemed more interested in her own inconvenience than the well-being of the parties. Led to believe (despite my persisting doubts) that the parties were proceeding to mediation in a good faith effort to settle their antitrust litigation, I agreed to arrive at the appointed hour with the same intention.
I awaken the next morning feeling pretty much the same way litigants do prior to a mediation. They have outstanding conflict issues with one another - telephone calls not returned; suspicion generated by the games litigators play; harsh words exchanged between the parties; accusations lobbed by counsel across the bar to the sitting judge; and, the natural demonization that occurs when the parties stop talking to one another and put their disputes into the hands of attorneys.
No matter how sophisticated the litigation and how able the counsel, at least half the people in the room would rather not see the other half now or ever. No one likes conflict. But if your mediator is unskilled at facilitating a group process in the presence of conflict -- even one she's created -- hire another mediator.
I enter the meeting room all "morning in America." Shake hands, make and receive introductions, sit down with the entire group in joint session, roll up my sleeves and get to work. Everyone seems cheerful, unusually so. They're friendly with one another and only slightly wary of me. We carve out one of the issues that seems most amenable to resolution, stay in joint session and make progress on that issue before we eventually reconvene in separate caucuses.
At some point in the process, when everyone seems affable and we are sharing war stories while waiting for a counter, someone mentions the email. This spirit of camaraderie among counsel and the parties, I'm led to believe, arises from my irritability. They united, they say, against me. I somewhat sheepishly acknowledge that my intention was not to create a common enemy. I admit, however, that I'd awoken that morning hoping that, at a minimum, the parties would have come together in the spirit of resolution against a mediator who'd accused them of gamesmanship.
Five hours after we begin, we have narrowed the issues, resolved significant differences in opinion and have whittled a $10 million dispute down to a $500,000 difference of opinion. I leave confident that the parties will resolve that difference, either through direct negotiations or in a future mediation, with or without me.
There are takeaway lessons here - not the least of which is a reminder that we can resolve the conflict we create simply by showing up and being accountable for our part in it.
The larger lesson about developing conflict-resilience will be the subject of the final post in this series tomorrow.
It is a truism that our greatest weaknesses can also be our greatest strengths. We all have something that we'd like to see changed. We're too easily startled by the unexpected. We don't have easy access to our own emotional lives. We're short-tempered. We speak softly, tentatively, when we'd rather be bold and appear confident. We're confident but we too often appear arrogant. We enjoy the sound of our own voice and tenor of our own opinions better than those of others. We have a difficult time seeing both sides of the issue. We'd rather be right than happy.
Are you with me? As a friend who is a therapist is fond of saying, we're all some kind of crazy. And as one on those 12-step programs regularly notes, we're just lucky not to all be crazy on the same day.
The Mediator Must Be Crazy!
I'm doing what I always do to prepare for a mediation - reducing the parties' positions, relationships and events to a single page by making the verbal graphic. I'm on page four of the single-spaced letter brief drafted by a seasoned attorney at am AmLaw 100 firm. It's written densely but as clearly as humanly possible. Still, understanding it requires the application of all 25-years of my commercial litigation knowledge, experience and training.
I'm pretty sure I've got the basic idea, have identified the central legal and factual issues, understand the contractual relations of the parties and comprehend (dimly but well enough) the statutory bases of their conflicting claims. I'm assuming (because I don't read ahead) that there's probably only one page to go. I'm reading the brief as a .pdf so I click on button that lays out all of the pages of the document as small icons in the right margin.
It's fourteen pages long! Single spaced! There's approximately $10 million at issue with four real parties in interest. One of the other parties, also represented by am AmLaw100 firm, has given me a shorter brief, but has attached to it a 30-page record. The third is waiting for me at my "virtual office" in Beverly Hills, fed-exed there the night before.
And that's the moment the mediator cracks.
I've been here before. I have written an irritable email and my finger is hovering over "send." Every rational fiber of my being is shouting no no no no no no no. Still, my central weakness, often read as intemperance, sometimes spun as authenticity, is about to win again.
I'd like to remind the parties that the Superior Court may only recommend but not order parties to mediate a case with an amount in controversy that exceeds $50,000. California case law prohibits the Court from ordering the parties to pay a neutral to mediate any case regardless of the amount in controversy. That being the case, mediation in California remains voluntary for any matter with an amount in controversy that exceeds $50,000.
For reasons that frankly mystify me, the highest quality law firms in the City are voluntarily asking a randomly appointed pro bono mediator to assist them in settling a matter with an amount in controversy of $10 million based upon a factual record of astonishing complexity as applied to a body of case and statutory law that has required a fair amount of study by a commercial litigator with 25-years of practice behind her.
Had I read your briefs before today, I would have called each one of you to inquire about your intentions. I have, unfortunately, already spent three hours summarizing one of your submissions, which disinclines me to make the additional effort to contact you separately.
In the few cases I have been asked to mediate free of charge where the amount in controversy was in eight figures, either one of the parties possessed an unreasonably inflated idea of the value that could be wrung from a piece of litigation (something I do not believe is likely here) or counsel for the parties felt the need to satisfy the Court's recommendation that they mediate a matter they did not believe had any chance of settling.
If the latter explains your use of the pro bono panel for this case, I'd ask that you allow me to provide the documentation you feel you need to fulfill your perceived mediation obligation in abstentia. If there is an explanation for your use of the pro bono panel that eludes me, I ask that one of you please call me tonight. /*
I'm pretty sure this disqualifies me from continuing to serve on the Los Angeles Superior Court Pro Bono Panel.
Because it's Sunday, and because I always loved Saturday movie serials that ended with Pauline strapped to the train tracks with a locomotive bearing down upon her, I am going to delay to my readers the satisfaction of getting the then what happened?!? answeruntil tomorrow.
Hint: it was a good thing!
*/ Email changed only in its case-specific details to protect the parties' confidentiality.
Unwelcome mediator's proposals are trial counsel's single biggest mediation headache. Done correctly, a mediator's proposal builds on prior negotiations, manifests the parties' unspoken intent to settle and bridges the gap to closure. Done poorly, a mediator's proposal is a bell that cannot be unrung. It emboldens the side it favors, making the case more difficult to settle while alienating counsel and clients.
Best practices for mediators:
Before making a mediator's proposal, make sure that it is what the parties want. If you are not sure, don't do it.
Build on prior negotiations.
Allow time for consideration and securing authority
Best practices for trial counsel:
In the first caucus, inquire about the mediator's thoughts, philosophy, practices and procedures re: mediator's proposals.
Instruct the mediator that he may not make a mediator's proposal without your express permission.
Keep a watchful eye during the mediation's final third, so you can either head off or shape a mediator's proposal.
As a last resort, terminate the mediation. It will be easier to restart the negotiations than to repair an unwelcome mediator's proposal.
Ralph O. Williams III
Architect David Denton spends much of his time on a lush tropical island, where he experiments with cutting-edge building designs and creates spaces for artists to showcase their work.
Never mind that the island only exists in the virtual-reality world of Second Life, a popular online venue where people interact via digital avatars. Denton, 62, said he purchased the island for about $700 — real money, not virtual cash — from its former owner, and considers it his property.
Here's the thought this article triggers. If 90% of all litigation involving people (I'll skip corporate litigation and litigation brought to vindicate rights such as that declaring Prop 8 unconstitutional) will end with a retired Judge telling the people that litigation is too expensive and a jury trial too uncertain for them to bear, why don't we just litigate virtually (with Linden dollars!) giving the parties the experience of litigation that will eventually drive them to settlement?
I'm sure some smart programmer can come up with an algorithm for most personal disputes, including both factual templates and the application of simple legal principles. A "ticker" could keep track of the dollars your virtual attorney is billing on your law suit's screen everyday. Continuances, discovery motions, pre-trial proceedings and depositions could all be simulated.
Then the parties return from the virtual life of Second Life Litigation and sit down in the old fashioned way to negotiate a resolution to their dispute or, if necessary, hire a village elder trained in conflict resolution, sometimes called a mediator, to help them do so.
(pictured: retired Judge hearing for the first time that his job as a mediator is to facilitate a negotiated resolution, not to decide the legal action in the absence of evidence)
I have often bemoaned the spotty state of mediation education, training and mentoring in the ranks of those people who mediate litigated cases. My own recent mediation experience - as a party - makes me even more concerned about the state of mediation practice. As you can see below, it also makes me feel what many people feel post-mediation and that feeling is anger.
For those lawyers who judge mediator competence on self-reports of mediation "success" or on hearsay about the number of "settled case" notches a mediator has on their "neutral" belt, let me say this one more time.
Settlement is not the goal.
A mediator who "settles a lot of cases" is not therefore a "great mediator."
A mediator who "settles a lot of cases," particularly those involving unsophisticated players (i.e., people) may be a terrible mediator.
The purpose of mediation is to serve litigants' justice interests while at the same time helping them negotiate a resolution to litigation if a negotiated resolution is a better alternative to trial.
Below, 27 ways to F$#@up a will contest mediation and 10 things to do if you want to learn your trade.
A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"
What we do, my friend, is discovery.
Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.
How do you know when you're finally finished with legal practice? When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love?
It's usually a discovery moment.
For one of my former law partners, it came on the heels of a five page meet and confer letter. Single spaced. When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement.
"You're not really going to send this, are you?"
"Yes, I am. Let me sign it."
"No no no no no no no. I can't let you do this."
"Yes you can. Let me sign it."
Here's the response that struck fear into the heart of an overworked legal secretary:
And yes. She sent it.
For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.
The Dugard family members claimed psychological, physical and emotional damages. . . . .
The money will be used to buy the family a home, ensure privacy, pay for education, replace lost income and cover what will likely be years of therapy, said Weinstein, a retired San Francisco County Superior Court judge. In addition, much of the money will be placed in long-term investments, he said.
"It was not an effort to make reparations for the years of abuse and incarceration or imprisonment against their will, because ... the damages to these people were incalculable," Weinstein said in a telephone interview. "Part of this was a prudent effort by the state to shut off liability from a catastrophic verdict."
Weinstein praised the state for quickly accepting responsibility, and the Dugards for accepting a reasonable settlement at a time when the state faces a $19 billion budget deficit. He said the scope of the claim was unprecedented in his 20 years as a mediator because of the duration of the crime and that it led to the birth of two children.
Mediator: You cannot mediate in the manner the Straus Institute taught you to do. You have to come to terms with that.
Galileo was ordered to stand trial on suspicion of heresy in 1633. The sentence of the Inquisition was in three essential parts: Galileo was found "vehemently suspect of heresy," namely of having held the opinions that the Sun lies motionless at the centre of the universe, that the Earth is not at its centre and moves, and that one may hold and defend an opinion as probable after it has been declared contrary to Holy Scripture. He was required to "abjure, curse and detest" those opinions.
On Friday, a proposed Facilitated Mortgage Workout Program quietly passed from the California legislative scene after its defeat the day before, three votes shy of passage. Although the bill's proponents thereafter won a short stay of execution, the law making body's failure to reconsider the bill by Friday's deadline made it dead on arrival.
Given the concerted opposition of the lending and banking industries, as well as by the national Chamber of Commerce, it is surprising that the margin of the defeat was so narrow, suggesting that many in this (and other state legislatures) are continuing to feel considerable pressure from their constituents to take bolder action in response to the nationwide housing collapse -- a collapse that has been particularly severe in the Golden State after years of annual double-digit inflation in housing prices.
I'm walking to my appointments today. Because I can and because I can't get down to the Gulf to help out there. Let's each do one small thing today. And tomorrow. Start a daily blog of "heal the Gulf" activities. Tweet or post "things to do." Call a friend or relative in the area and ask what you can do to help. Observe a moment of silence for the BP workers killed in this disaster. Say a prayer in honor of the wildlife most religions tell us to be responsible for. Remember that the planet does not need us to survive. It did quite well before us and will do quite well after us. We need it.
At its best, the negotiated resolution of conflict generates accountability among all of the stakeholders. When we're accountable - when we take our part in it - the way in which we can transform our impotent outrage into productive action becomes instantaneously apparent.
By taking the role of the mediator in particular, I had to take off my advocate hat and force myself to let the parties work to a solution despite my desire to jump across the table and shake them until reason, and what I thought was the proper legal solution, prevailed. I found it difficult to sit there and just listen before doing something I am far from used to outside of a client counseling role, namely remove (instead of add) the types of loaded words that all lawyers use in advocacy and to replace them with more neutral words when clarifying the parties interests.
By the end of a couple of the role plays my brain hurt because of the use of mental muscles that I hadn’t used out in the open. By trying (sometimes sucessfully, sometimes less so) to remove my past experience as an attorney in mediation and as a litigator in order to guide the parties to a decision with which they could live and that they came to on their own, I learned how hard it is sometimes to let the process work. I gained a better understanding and appreciation for good mediators who can take two parties that have been at each other’s throats for nearly a year and bring them to a solution.
This is, of course, the $64 million dollar question. Or the $640 million dollar conundrum. Or the $6.4 billion dollar SNAFU.
Abandon all hope . . . .
The answer: make a checklist and follow it!
Atul Gawande's Checklist Manifesto - How to Get Things Right is not about ordinary lists - those "to do's" we never get around to; the recipe for gramma's extra fudgey brownies; or, even the T-minus rocket launch count-downs (forcing functions) which my friend the astral-orbital engineer has been holding his breath through this week (his T-minus rocket count aborted at six seconds last night).
I'm talking about communication check-lists of the sort used by our friends in the sky-scraper business - the ones that have achieved this jaw-dropping "annual avoidable failure rate":
What kind of check-list does that? In the construction industry, it's a "submittal schedule" - a checklist that doesn't
specify construction tasks; it specif[ies] communication tasks. For the way the project managers dealt with the unexpected and the uncertain was by making sure the experts spoke to one another - on X date regarding Y process.
The submittal schedule assumes that if you get the right people together to talk things over as a team, serious problems can be identified and averted. It's that simple and it works as well for physicians dealing with routine but complex collisions between genetics and circumstance as it does for contractors and jet pilots. Checklists, it turns out, can solve problems like raising a child . . . . or resolving disputes.
Can Gawande's "communication checklists" be good news for in-house counsel trying to prevent litigation?
Yes they can. And they already exist. Dispute resolution techniques are scalable -- the procedure described can be used for fights over shared lockers equally well as conflicts over shared political boundaries. Scalability means that the system for solving the small problem can also be used to solve the big one by "adding new functionality at minimal effort."
The even better news for in-house counsel is the fact that you do not need a "mediator" to follow this list. You do need enhancements, however, to take you from the fight over a shared school locker to the lawyer threatening to sue your company for defamation or products liability or antitrust violations or securities fraud.
The Middle School Checklist today.
STEP I: SETTING THE STAGE: INTRODUCTION AND GROUND RULES
Mediators: introduce themselves; explain the process of mediation and that it is voluntary; explain that mediators are neutral; explain confidentiality; establish a safe and comfortable environment; and, get agreement on the following ground rules:
No name-calling or put-downs.
Agree to solve the problem.
Be willing to listen.
STEP II: DEFINING THE PROBLEM
Mediators: Ask who will talk first; ask what happened; ask how he or she feels about what happened; summarize each statement; and, give each party approximately equal time to talk.
STEP III: IDENTIFYING THE ISSUES
Mediators: Use active listening skills (repeating, summarizing, clarifying); create an agenda; focus on issues important to both parties; stay neutral; ask if any issues have been missed; and, identify areas of miscommunication or wrong assumptions.
STEP IV: FINDING SOLUTIONS
Mediators: Address issues one at a time; brainstorm solutions; ask what each party would like the other to do differently in the future; ask what each party can do to resolve the dispute; and, ask what can be done differently if the problem occurs again.
STEP V: AGREEMENT AND CLOSING
Mediators: • Write specific agreements for each issue outlining who will do what,
where, how and by what date; balance the agreement so both parties take responsibility for the solution; be sure the agreement is realistic for each party; be sure the agreement really addresses the issues; ask if any issues have been missed; ask parties to prevent rumors by telling people the dispute is resolved; and, thank the parties and congratulate them for their hard work.
[P]laintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions.
In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews).
Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming.
Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).
Here are the results from the question: what are your aims in mediation?
The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case. Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).
We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blogfor one obvious and some not so obvious reasons. The obvious reason is the word “She.” The not-so-obvious reasons are: (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.
Lorrie is a working mother and a trial attorney with two children under five years of age. Though working part-time for a part-timer’s salary, during the six months preceding year-end bonus time, she'd been billing more hours than most of the firm's other attorneys. She was putting in the extra hours at considerable hardship to herself as she helped prepare for trial a case for one of the firm’s most important clients. The client was extremely pleased with Lorrie's work and had singled her out for particular praise.
Because Lorrie had worked so hard and so well, Lorrie's supervisor recommended that Lorrie receive the full $10,000 bonus the firm’s Executive Committee had earlier approved for all full-time associates who met their billing requirements.The Executive Committee approved the request and authorized the firm’s Managing Partner to give Lorrie the good news.
When the Managing partner called Lorrie into his office, he told her that the firm was considering giving her a $7,000 bonus, which bore the same percentage to $10,000 as her part-time salary bore to full-time associate pay at her level.Lorrie said she understood; that she greatly appreciated receiving any bonus at all; and, thanked the managing partner for the $7,000.
When Lorrie’s supervisor heard about the bonus, she immediately called the Managing Partner and demanded to know why Lorrie wasn’t given the $10,000 bonus she'd recommended.
"I thought you said the Executive Committee approved it."
"Oh, the Executive Committee approved it,” said the Managing Partner.“But Lorrie seemed so happy with the $7,000 bonus I thought I’d do the firm a favor and save it three grand.”
"She’s talking about leaving the firm."
“I don’t understand,” the Managing Partner replied.“She was so happy.If she wanted more, why didn't she ask for it? I was expecting her to negotiate. $7,000 was my opening offer."
A month later, Lorrie left the firm, to the great disappointment of her supervisor and the firm’s client.
WHAT’S THE PROBLEM HERE?
If I were advising the firm rather than women studying negotiation, I'd have a few choice words for the Managing Partner about being penny-wise and pound-foolish. But we’re not talking about corporate America here. We're talking about your well being; your family's well being; and, your ability to immediately change the income gap between you and your male counterparts (an American gap of 76 cents on the dollar in general and sixty cents on the dollar for women lawyers)
Five years ago, after twenty-five years of high-stakes complex commercial litigation, I left legal practice to pursue a full-time ADR career. At the time I left practice, these were the questions my teams and I were asking about the qualifications of mediators:
"Do we really want to hire an attorney mediator for this case?"
"Don't you think the client wants a Judge?"
The ADR profession has mostly passed that hurdle. Though some litigators continue to say "my client needs to hear the bad news from a retired judge," most litigators understand that mediation is more about influence, deal making, subtle persuasion, specialty knowledge, "real life" experience, people skills, and raw intellectual speed.
Right now I'm going to remind my readers that well-behaved women rarely make history.
These are the conversations taking place at the highest levels when someone suggests my name as a mediator.
"Do we really want a woman mediating this case?"
"The client won't accept a woman mediator."
"This case doesn't have women's issues in it."
"If it was an employment case, a woman might be appropriate. Those cases involve a lot of emotion. Women are good at that." (I'll say it again: if you don't believe men are emotional about litigation, you don't understand that anger is an emotion)
Why are they even talking about my gender? Why is it relevant? They don't ask "do we really need a man to mediate this case?" Except on those occasions when women's issues are involved.
How do I know this?
I've got the statistics from Babcock and Laschever; I've got the knowledge of how high-end litigators talk deeply embedded in my genetic code; and, I've had the following way too recent conversations.
Conversation Number One with the CEO of a Successful ADR Panel
Conversation Number Two with (male) Litigation Client in Separate Caucus
Victoria: "Do you worry about jury blow back because your clients don't have green cards?"
Attorney: "Not any more than I'd be worrying about what they'll think of the Lesbians in the next room."
Victoria: "Ohhhhhhhh, they're Lesbians!"
Attorney: "Why do you think we hired you?"
Conversation Numbers 3-10 with Separate Litigation Clients in Separate Caucus
Victoria (as an aside): "You know I didn't practice personal injury law."
Male client: "We know. But we needed a woman for this case." (# 1: injuries to the scalp at a hair salon; #s 2-5: injuries arising from Botox treatments; #s 5-8: women real estate brokers or agents and women clients; # 9: medical malpractice: wrongful cliterectomy; # 10: medical malpractice: wrongful vasectomy).
Conversation Number 11 with the Head of a Federal Settlement Panel
"The attorneys rarely choose the women on the panel." (and we're free!)
Conversation Number 12 with an ADR Insider
"So few attorneys were choosing African-American and women arbitrators that they stopped putting them on the panel."
A Baker's Dozen: Conversation Number 13 with a Fellow Mediator (Male)
Mediator: "Why don't you pursue the women's market?"
Although the answer to this question could have been: "because women don't refer."
Get the picture? Yes we see.
Why "Women Don't Ask: Negotiation and the Gender Divide" makes this all make sense tomorrow.
Today I stumbled over the post Women Deal with Conflict Differently than Men, reporting on a study done by the Program on Negotiation at Harvard in 2008. Results of the study showed the following similarities between men and women including:
Integrating, the ability to meet the needs of both parties; and,
Compromising as a strategy, except women showed a "high level of agreement that every issue has room for negotiation"
The differences included:
women's tendency to choose equal distributions when compromising which the researchers apparently ascribed to women's greater concern with fairness;
competitiveness - with men scoring 25% more competitive than their female counterparts
"smoothing," with women engaging in that behavior 20% more of the time than men - smoothing being defined as "giving in to the other party while ignoring one's own needs"
avoiding or withdrawing with women doing so 30% more than men
expressing feeling, with women apparently doing so "more" than men but no percentages are provided
We'll be working with gender differences through the end of the month of March and will likely discuss this data in more detail later.
I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month. Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.
If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary. If you do not negotiate your first salary, you stand to lose half a million dollars over...
Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting. On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living. When you...
(Right, women protesting, 1912. My own grandmother was 12 years old at the time this photo was taken. By the time she was old enough to vote in 1921, she could vote) Why women's voting rights and Hillary Clinton's DNC...
If you're a certain age, you'll remember women's magazines as mostly "Can This Marriage Be Saved" (The Ladies Home Journal to which PWNSC members Cathy Scott's and Cordelia Mendoza's mother was always submitting articles) or 101 Things to do with...
Yesterday, we talked about the different negotiation styles of men and women. Today, we're going to explore how men can benefit from learning women-speak and women can benefit from learning man-talk. All of the data relied upon and excerpted below...
Although I am indisputably a "woman lawyer," I have never thought of myself in those terms. I'm a lawyer. And I'm a woman. I'm also a writer, a step-mother, a wife, a daughter, a river rafter, and an aficionado of...
(and, yes, I am not only old enough to remember the "Second Wave" Women's Movement, I took a quite serious role in it, first as an unpaid volunteer and later through the federal government's "Program for Local Service" at...
Thanks again to Vicki Flaugher of SmartWomanGuides.com for inviting me to have this conversation with her about ways in which women can and do maximize their bargaining power. And yes we do talk about negotiating the purchase of an automobile...
In part two of Vicki Flaugher's interview with me, we discuss ways in which women can comfortably respond to aggressive zero-sum distributive bargainers and negotiate better business deals using their natural strengths. I'd like to once again thank Vicki Flaugher...
Video below is part I of an interview on negotiation challenges, strategies and tactics for women with Vicki Flaugher, founder of SmartWoman Guides. The full audio of the video is here along with Ms. Flaugher's kind comments about our conversation....
How to Negotiate Anything: Free Intro Thursday, Mar 18, '10 8pm EST Some researchers say that women's failure to negotiate working conditions, salary or other compensation--along with their hesitancy to seek what they're worth when they do negotiate--is one of...
Whereas American women of every race, class, and ethnic background have made historic contributions to the growth and strength of our Nation in countless recorded and unrecorded ways; Whereas American women have played and continue to play a critical...
When I posted Negotiating Gender: Why So Few Women Neutrals? I had not yet found a source for the statistical representation of women neutrals on the American Arbitration Association Panel. I've now located an article on the AAA website from...
Although most of the major providers of alternative dispute resolution services tout their commitment to diversity in the ranks of their neutrals, the coloration of nearly all ADR panels continues to be white; the nationalities European; and the gender male....
Thanks to Ed. at Blawg Review for passing along this (somewhat rambling but well worth watching) lecture at Stanford University by Deborah Kolb, the Deloitte Ellen Gabriel Professor for Women and Leadership at the Simmons College School of Management....
Litigating and trying complex construction disputes requires visionary strategic talent; incisive tactical skill; wise management abilities; and, dogged persistence. Now construction litigator, trial attorney and mediator Ron White brings those qualities to the settlement of complex construction disputes with his newly launched blog, The Critical Path, Tools for Resolving Construction Disputes.
I especially like the opening "habit" - vision. Below is an excerpt, but you'll want to stroll on over to Ron's new shop to check out the entire post. While you're there, welcome Ron to the ADR and Construction Law Blogosphere. I long ago told him that we're like a small town in Iowa where people still leave their doors open and the welcome wagon arrives with lists of local services; good advice; and, baked goods. Don't make a liar out of me!
"A successful negotiator," Ron writes
has outstanding vision; he sees both the strengths and weaknesses of his case. He has the capacity to look beyond the narrow focus of advocacy and peer into the broad spectrum of possible outcomes through the eyes of the judge or the jury. He meticulously evaluates the law and facts advocated by his opponent, knowing, as did the samurai, that “You must understand the conditions on the opposite shore to comprehend your side of the river.” This perspective minimizes negotiating mistakes, which, studies have shown, occur more frequently with plaintiffs, but that when defendants do make them, they are really big mistakes resulting in awards much higher than plaintiff’s last pre-trial settlement offer.
Unlike many others in the mediation field, I did not make the acquaintance of Richard Millen until recently. In the past couple of years, we met for extended lunches and too many tall lattes (the lattes mine) between the old Wolfgang Puck's and the shuttered Virgin Record Store at Sunset Blvd. and Crescent Heights.
Aside from the usual frustrations of mediators (insufficient respect; the difficulty of making a living; doctrinal disputes; and, the like) Richard suffered from age bias quite acutely. It was not any physical ailment or diminishment in mental capacity that left Richard unoccupied after a robust and active professional life, it was the way in which he felt patronized, under-utilized and overlooked because others believed he was simply too old to do the job.
This is as untrue as any other stereotype or prejudice. As Richard noted in Transcendent Mediation, the facilitation of dispute resolution is a wisdom business in which the mediator, as the agent of change, disappears as the parties "do for themselves what they came for the mediator to do." Richard explained:
Wise mediators . . . need to adopt is a different epistemology which changes the way we think about the conflict[,] thereby avoid[ing] “solutions that may seem quick and easy and expedient, but in fact are premature. . .resulting in a helping and a fixing instead of a non-hierarchical, common endeavor toward, if not to, a complete change of energy and reconciliation.
“Our essential task is to allow all sides of an issue or pairs of opposites to exist in equal dignity and worth until their hidden unity is revealed.By befriending and strengthening our capacity to hold paradox, we explore the realm of spiritual growth.As we actualize all aspects of ourselves and weave them into an apparent symmetry, we become more skillful problem solvers, mediators, stewards of justice, and models of patience and mercy.
Finally, there is [the instruction of] The Bhagavad Gita [that] we should neither be attached to the actor nor to the fruits of the action. [W]hen a mediator is not so attached, the mediator is truly liberated to serve the parties in the mediation process by changing it to a positively oriented non-hierarchical, common endeavor in which the parties do for themselves what they came for the mediator to do.
That is how to be and do as both a mediator and as a person in one’s life with power of choice.When as mediators we are in service to others, we are working on ourselves.When we are personally working on ourselves, we are helping others.It is the same.We cannot tell the difference.
We've taken on racial and gender bias here recently. In honor of Richard, let's also rethink our attitudes toward the aged or "elderly." As geriatric nurse Alison Parsons explains in her article Attitudes to the elderly:
Ageism is "a process of systematic stereotyping of and discrimination against people because they are old... Ageism allows the younger generations to see older people as different from themselves, thus they subtly cease to identify with their elders as human beings." (Butler, 1975, cited in Matteson & McConnell, 1988: 482). Matteson and McConnell (1988: 482) point out that ageism decreases social status, and diminishes contact with younger people. It affects the health care of older people by influencing the attitudes of health care professionals and policy-makers towards the aggressiveness of diagnosis and treatment of the elderly. These attitudes are often based on erroneous assumptions regarding the utility of chronological age as a marker of function or ability to contribute to society. The tragedy of ageism is that it robs society of the fullest contributions of its older members, and it denies people's fulfilment of their potential as human beings throughout the life course.
Let's use the time of Richard's passing to take a look again at his writings and rethink our own attitudes not only toward age but toward what too many attorney-mediators dismiss as "touchy feely" practices - the ones that can take the opportunity offered by conflict to experience a moment of clarity, transformation and transcendence.
Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day. They do so by:
their reputation for success at trial;
their ability to choose the right moment to first discuss settlement;
their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
their persuasive skill set - both with opposing counsel and with the mediator;
their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
their determination to make aggressive but reasonable first offers;
their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
their ability to bring the right people to the table at the right time; and,
their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.
Some of these skills are in all litigators' arsenals. Where most litigators are the weakest is in the negotiation of settlements. I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.
Here are two new resources you should have at hand every working day. "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds.
Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace. There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really). Laywers love numbers in the way only people who don't understand them can. I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation. For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers. Do check it out.
There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator. This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.
The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for. Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%. Today Lee Jay mourns the passing of a giant in our field - Richard Millen. As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.
Must-read tribute to Richard Millen at Lee Jay Berman’s new Eye on Conflict. Lee Jay traces the lineage of mediation in Southern California, with Millen at the top. Whether you knew Richard or not, he says, if you’re a mediator, you were taught by him.
It doesn't begin to capture Richard's colorful life, impish spirit, and fierce dedication to the practice of mediation "the way it ought to be." It doesn't say how many times Richard would meet with new mediators to mentor them and share the joy and sorrows of the field that had so much potential yet, he believed, failed so persistently to live up to it. I never told Richard that he was the father I adopted for the loss of my own, first to Parkinson's and then back to the sea he loved, ashes to ocean.
I understand from Richard's devoted friend, mediator Lee Jay Berman that Richard's family is having a private internment on Friday at Mt. Sinai but that he and mediator Laurel Kaufer will be planning a tribute soon, an event to honor Richard's life.
I don't think there's a mediator in town who didn't know and love Richard. Not, you'll excuse the presumption, a "real" mediator at any rate. Richard, for all his storied "soulfulness" did not suffer fools gladly or at all. Nor did he cotton to separate caucus, position-based, distributive, single-issue, monetized shuttle mediation. He considered most of us lawyers benighted fools and strove mightily to treat us with compassion rather than holding us in contempt. That old cavalry soldier was never one to roast marshmallows over an open fire - he'd rather roast a few executives, attorneys, and "settlement conference" mediators instead.
The last time I saw Richard - not that long ago - he was sitting by my side at a meeting of the State Bar's Standing Committee on ADR muttering angrily about the way we were all wasting our time on legal issues, debating for God's sake, when we'd been given the keys to the kingdom already, keys we'd so carelessly left at home tarnishing in junk drawers.
I don't know what else to say. I hope people who knew and loved Richard will come here to share stories and say good-by and we love you without sentimentalizing him because he would have hated that. I would think Richard would have raged raged against the dying of the light except for the fact that he was pretty fed up with the lot of us toward the end there. So I'll end with a poem that doesn't cotton to people just up and vanishing. By one of the great contemporary poets of the English language, W.S. Merwin.
With each journey it gets
what kind of learning is that
when that is what we are born for
and harder and harder to find
what is hanging on
all day it has been raining
and I have been writing letters
the pearl curtains
stroking the headlands
under immense dark clouds
the valley sighing with rain
everyone home and quiet
what will become of all these
things that I see
that are here and are me
and I am none of them
what will become
of the bench and the teapot
the pencils and the kerosene lamps
all the books all the writing
the green of the leaves
what becomes of the house
and the island
and the sound of your footstep
who knows it is here
who says it will stay
who says I will know it
who said it would be all right
Once again, based upon my personal experience and that of tens of thousands of other women in commercial legal practice I continue to believe that until we are fairly represented on commercial ADR panels, both arbitration and mediation, we cannot expect significant change. This may happen as a matter of the natural "aging" process of the field. The ADR field looks now exactly like the legal field looked to me when I entered it in 1980. Not surprising given the fact that ADR is historically a "retirement" field. That is already changing, to beneficial effect.
For the adventuresome, Peter's pro-active recommendations below. I highly recommend, by the way, that you follow Peter's Business Conflict Blog. It's one of the best out there.
(screen shot of google search for our local legal rag's "top 50 neutrals)
■ What if the country’s leading law firms—from which so many of our leading mediators and arbitrators emerge—had an incentive to encourage more diverse members of the firm to enter this field?
■ What if a benchmark survey were conducted to determine how often law firms suggest mediation to their clients; how often mediation is in fact tried; and how often diverse mediators are proposed to clients by outside lawyers and ADR provider organizations?
■ What if the property casualty insurance industry, as the largest consumer of legal services and of ADR services, conveyed its expectation that the firms that insurers pay for, when they propose mediators and arbitrators, will be expected to propose diverse individuals?
■ What if influential national ADR organizations combined forces to better reflect their corporate and legal constituents, and meet their customers’ expectations, by sharing information on excellent women and minorities who are not now on their lists, but should be?
■ What if initiatives were undertaken to encourage particularly promising women, younger people and minorities from firms to attend ADR colloquia, seminars and other events in order to network, learn and advance their visibility and recognition among the ADR community, as well as to contribute diverse views and perspectives?
■ What if a mentor program were designed and funded, pursuant to which younger female and minority attorneys could “shadow” established mediators and arbitrators (whether or not they are women or minorities) and establish skills and reputations thereby?
■ What if corporations and law firms intentionally engaged younger mediators who are women and minorities in smaller matters, so that those professionals would gain experience as neutrals and be better positioned for the larger cases?
■ What if scholarships were established to enable young people to be trained as mediators and arbitrators, with the expectation that a person thus trained would be skilled not only as a neutral, but more generally as a negotiator and client representative in settlement?
■ What if a very “early pipeline” were begun, and ADR institutions worked with Street Law Inc. (www.streetlaw.com), a national program that trains high school students in legal issues, or a similar organization to provide materials and information for children to become interested in ADR as a profession?
It is perplexing that this one aspect of the legal profession—a field that is otherwise so robust, so progressive and so creative—lags behind so miserably in satisfying client expectations for diverse practitioners. But there is no indication that it must be so. And with diligence, creativity and practical action, it will not long be so.
[By mediating,]I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much.It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.”I too was now using every part of myself, including a squeal of delight.The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.
Thanks Roger! This didn't just make my day; it made my year!
Plaintiff’s Motion to Compel Acceptance of Lunch Invitation
The Court has rarely seen a motion with more merit. The motion will be granted.
The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.
The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to“Sweet discourse, the banquet of the mind” (The Flower and the Leaf).
Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.
Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case.
The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel. 1
1 Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.
Read on by clicking on the .pdf above.
And how could I resist adding the "will you go to lunch!" scene from David Mamet's Glengarry Glen Ross.
If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you. Diane is an extremely focused, disciplined and lively writer. She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.
With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.
Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position. Remember - you need a new number and a new reason to counter that new number. If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so. If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.
The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).
Diane adds one new fallacious argument every month. I'll endeavor to keep up with her. But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant. That's her smiling face at top. Visit her often! at The Mediation Channel.
Conflict is in the house. The evil fairy surrounded the castle with deadly thorns. The "good" fairy put everyone in the castle to sleep. Will you be the valiant Prince in your own dispute story? Or are you the prize? The beautiful one who would prefer to remain unconscious rather than address the great battle between good and evil represented here? Did you hire a lawyer to resolve your dispute for you? Will he make it to the castle in time? Or will he spend the bulk of his energy erecting more obstacles to prevent your adversary from reaching you. By the time both champions reach the castle, will everyone be too bloodied and broke to rise from your bed and put your house back in order?
The not so secret opinion among mediators is that attorneys make settlement more difficult. Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators tend to say "mediation would great if it weren't for the lawyers."
Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.
I can't say lawyers are a problem because: (1) they're my job; and, (2) they're "my people" in the "tribal" sense. A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know. And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.
Let's start with this particularly widespread canard from the article:
Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client (citations omitted). Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client]. In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1
Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach. What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?
Here's the bottom line assessment (please read the article yourself to draw your own conclusions).
The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.
Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.
So the Myth Busters of this study conclude that attorneys:
don't "significantly affect the settlement rate" /2
don't significantly affect "the perceived fairness of the process";
don't significantly affect "the parties' level of satisfaction with the agreement; and,
don't significantly affect the "parties' level of trust that the agreement will be honored."
This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.
What did litigants report to the authors of this article? They indicated that attorneys adversely affected mediation outcomes in two ways: (1) they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."
Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.
Please read the article for proposed solutions to the reconciliation issue. As to the remainder of the study's findings, I have this to say:
whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group. Our "reality," especially as it appears in a group setting, is "co-created." See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world." Id. at 218.)
try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved.
who is therefore responsible for the good and who responsible for the purportedly bad results of mediation? That's easy: EVERYONE IS.
That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all. Remember your University philosophy class? Thesis, Antithesis, Synthesis. We need people willing to state the negative to problem solve it positively. The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command.
If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).
The world can never be assumed to exist. It comes into being only in the act of moving towards it. Ese est percipii. Nothing can be taken for granted: we do not find ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings. Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act. The slate has been wiped clean. It is up to [us] to write [our] own book.Paul Auster,The Decisive MomentfromThe Art of Hunger.
The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).
Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.
It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.
Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the way, we can't credit credit nor bear all the responsibility for anything. We are all capable. We are all accountable. And we all contribute something to the whole.
So we can stop pretending to be better than we are now. We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do. We're part of the team. We're in it together. Isn't that good news for the New Year?
And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.
1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."
2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.
Don Philbin, the author of this must-read article (click on the image for the .pdf) on the reasons you walk away from negotiations fearing you've either left money on the table or paid too much for what you receive in exchange, is an attorney-mediator, negotiation consultant and trainer, and arbitrator.
Don is listed in The Best Lawyers in America (Dispute Resolution), The Best Lawyers in San Antonio, and the Bar Register of Preeminent Lawyers.
Don's ADR Toolbox where this article can also be found is an indispensable resource for all attorneys negotiating the settlement of a lawsuit or a business deal (wait a minute! the negotiation of a settlement is a business deal!)
And, it's not inconsequential that Don is one of the nicest guys I know. If you're going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn't worth the unhappiness that comes when dealing with . . . . the other sort too often.
I've posted two pieces on non-litigated business to business mediations at the Commercial ADR Blog (here and here) in the context of a dispute between a medical marijuana facility and its neighboring tenant. For reasons not entirely clear to me, the new blog has been generating a lot more comments than this blog generally does which pleases me and leads me to let the Negotiation Blog's readers know of the on-going conversation over there.
Though the reasons given for our negotiation hesitancy are insightful and, I believe, spot on, the post moved me to more or less use the HR Capitalist Blog's comment section to write today's post. Here's the intro to Retail and Religion.
Have you ever noticed how bad a lot of Americans are at negotiating? I don't mean the type of negotiation you're doing on eBay right now; I mean real negotiation. The kind where if you're going to win, somebody has to lose. Where every dollar you save or gain comes right out of someone else's pocket. The type of negotiation where you are telling someone directly, either face to face or on the phone, what's acceptable and what's not.
Though my response will not surprise my readers, I'm hoping it will spark a conversation at the HR Capitalist. The intro to my comment here:
Thanks for raising negotiation skills as a matter worthy of discussion among HR professionals. Let me suggest, however, that savvy, money-saving, value-enhancing negotiation strategy and tactics are rarely of the competitive zero-sum variety.
A few bedrock principles of value-enhancing collaborative problem-solving negotiation include: (a) a dollar is not a dollar, i.e., everyone has a different subjective experience of money and its source; the reason for its payment; the timing of its receipt; and, the degree to which it fairly reflects value are just a few of the variables that can make one dollar feel like $10 or $100,000 feel like a slap in the face; (b) HR professionals and their employers possess items of value which are often of greater worth to employees than the cost of the thing to the employer - this means that employees can be compensated $1.00 in value with something that costs the employer 50 cents or, even better, with something that costs the employer absolutely nothing (expressions of gratitude; the inclusion of employees in the decision-making process when the decision will affect the working environment and so on); and, (c) most people are more interested in how their compensation compares to others who do the same or similar work than they are in the unadorned dollar value of their compensation - this I learned from sitting in compensation committee meetings in law firms where litigation partners would become enraged by a $200,000 year end bonus for the sole reason that another partner received a $500,000 year end bonus. It wasn't about money; it was about fairness.
So, do we need to screw up our courage, drop our hesitancy, and go bravely forth into competitive, distributive zero-sum bargaining session to prove our negotiation moxie?
For the answer - or at least one possible answer - to this question, click here.
Professional mediators Amanda Bucklow, Tammy Lenski and Diane Levin discuss the problems associated with hourly and project billing, and ponder the promise and challenges of value-based fees. Two resources were referenced in the discussion: Consultants and value-based billing proponents Alan Weiss and Wendy Werner.
Why does mediation work? For several reasons that I can think of [including] the flexibility to make a business decision. Commercial contractors and subcontractors are in a business, and they should be making business decisions. While one such decision can be to go to litigation; litigation is not always the best solution from a financial, or stress perspective. Construction professionals, with the assistance of construction attorneys, can come up with a creative way to deal with a problem and solve it.
Timothy Walker has one message for all the homeowners facing foreclosure in Western New York: If you get a letter inviting you to come to court, don’t be afraid. Just show up.
Walker, acting Supreme Court justice, oversees the state-mandated settlement conferences locally that are designed to bring defaulting homeowners and lenders together one last time to find a solution before ordering a foreclosure sale.
His job at these one-on-one meetings isn’t to take away someone’s house. Rather, his mission is to encourage both sides to sit down and make every effort to keep borrowers in their homes.
Since the process began, Walker and his staff have convened more than 341 meetings, with nearly 100 homes saved from foreclosure by getting lenders to modify loans to make them affordable. That’s about three times the success rate downstate.
we want rights because we are genetically programmed and culturally conditioned to be fair (remember the Capuchin monkeys who, trained to work for "money" staged a sit-down strike when others doing the same work were compensated at five times the rate as their under compensated fellows);
rights are meant to guarantee us equal treatment in the distribution of public benefits and resources; and, equal access to public and private accommodations;
remedies are meant to restore private and public resources to those who have been deprived of them because some one; group; organization or governmental entity has broken one or more rules by which we have chosen to govern ourselves; and,
moneyis a means to an end, not an end in itself and each of us desires money for the same reasons - control of our own destiny (power; self expression); access to the benefits of the social contract (1. Freedom of speech and expression 2. Freedom of religion 3. Freedom from want 4. Freedom from fear); security against an uncertain future (access to medical services and a mimimal standard of living if we become unable to care for ourselves); meaningful occupation; the opportunity to be of unique service to our fellows; love; and, joy (monetary sub-goals such as a pair of Jimmy Choo shoes are also simply a [misguided] means to achieve these ends).
I have been taken to task for being "touchy-feely" or "new age" or of insufficient value to my "market" because I say these things repeatedly in public. My "market," I'm told, would rather be right than happy; would rather someone lose so that they can win; and, believe the only thing anyone wants is money.
I don't believe it and I am committed to holding this space as a place-marker for my "people" who are suffering. Which people are those? Litigators.
The challenge of this and every year: How do we even begin to introduce the concept that we can more easily, efficiently and effectively satisfy the true interests of our fellows-in-the-social-condition than we can satisfy one individual's demand for preeminence over another?
On our least divisive, most-inclusive and thoroughly secular holiday of Thanksgiving, we can begin to alleviate the suffering caused by zero-sum games with gratitude -- the benefits of which are being studied by a team of researchers at my legal alma mater, U.C. Davis.
Gratitude is the “forgotten factor” in happiness research. We are engaged in a long-term research project designed to create and disseminate a large body of novel scientific data on the nature of gratitude, its causes, and its potential consequences for human health and well-being. Scientists are latecomers to the concept of gratitude. Religions and philosophies have long embraced gratitude as an indispensable manifestation of virtue, and an integral component of health, wholeness, and well-being. Through conducting highly focused, cutting-edge studies on the nature of gratitude, its causes, and its consequences, we hope to shed important scientific light on this important concept. This document is intended to provide a brief, introductory overview of the major findings to date of the research project. For further information, please contact Robert Emmons. This project is supported by a grant from the John Templeton Foundation.
We are engaged in two main lines of inquiry at the present time: (1) developing methods to cultivate gratitude in daily life and assess gratitude’s effect on well-being, and (2) developing a measure to reliably assess individual differences in dispositional gratefulness.
Gratitude Interventions and Psychological and Physical Well-Being
* In an experimental comparison, those who kept gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared to those who recorded hassles or neutral life events (Emmons & McCullough, 2003).
* A related benefit was observed in the realm of personal goal attainment: Participants who kept gratitude lists were more likely to have made progress toward important personal goals (academic, interpersonal and health-based) over a two-month period compared to subjects in the other experimental conditions.
* A daily gratitude intervention (self-guided exercises) with young adults resulted in higher reported levels of the positive states of alertness, enthusiasm, determination, attentiveness and energy compared to a focus on hassles or a downward social comparison (ways in which participants thought they were better off than others). There was no difference in levels of unpleasant emotions reported in the three groups.
* Participants in the daily gratitude condition were more likely to report having helped someone with a personal problem or having offered emotional support to another, relative to the hassles or social comparison condition.
* In a sample of adults with neuromuscular disease, a 21-day gratitude intervention resulted in greater amounts of high energy positive moods, a greater sense of feeling connected to others, more optimistic ratings of one’s life, and better sleep duration and sleep quality, relative to a control group.
* Children who practice grateful thinking have more positive attitudes toward school and their families (Froh, Sefick, & Emmons, 2008).
Because Doug, Lee Jay and I spent the entire day yesterday talking about legal rights and remedies as well as legal procedure in the context of negotiating the resolution of litigation, I was once again engaged in the soul-searching that always accompanies situations challenging my loyalty to the adversarial/rights-remedies business and stimulates my enthusiasm for the interest-based, consensus building, collaborative, problem solving negotiated resolution business.
Before giving you an excerpt that should tempt you to download the article and put it on your nightstand, I want to say this: I work on the razor's edge of my lifetime career-investment in the adversarial system, on the one hand, and my new'ish passion for collaborative, interest-based negotiated resolutions to disputes, on the other. I spent 25 years as a warrior who rightfully took advantage of my adversary's weaknesses. I was not a problem solver. I was engaged in a fight to the death on a pre-determined field with rules in which I believed for causes I knew to be just. As a result, I approach all alternatives to the adversarial process with a litigator's skepticism, wariness and world-wearyness. There is no kumbya in me. It is only my intellectual curiosity that survived the beating my heart took from the world-weary, cynical, grizzled old defense attorneys who taught me how to practice law (as adversaries testing my mettle) in Sacramento thirty years ago.
Sic transit gloria mundi.
The engine that drives litigation's morality tale is that conflict resolution is a contest between parties, one of whom necessarily represents good and the other necessarily represents bad. As a result, litigation seeks to designate who has committed moral transgressions by breaching legal norms (or, from the perspective of the defendant, who wrongfully accuses others of having done so).
The Story of Mediation subverts these norms by transforming this familiar morality tale into a story of collaboration. This subversion begins through how mediation conceives of conflict itself. Implicit in the Story of Litigation is that conflict represents a breach of the norms of conduct, thereby ripping the social fabric in some way large or small. In contrast, in mediation, conflict is a norm of conduct, a necessary byproduct of humans having distinct experiences and personalities and needs. Conflict is thus not necessarily a disruption of the moral order, and, indeed, can sometimes be productive.
Mediation's normalization of conflict, however, cannot eliminate what appears to be a deep-seated human need to understand experience in terms of struggles and strivings. Humans have great difficulty perceiving events as generated by causes beyond our control - what Amsterdam and Bruner evocatively describe as an inability to see events as "One Damn Thing After Another." We must instead "shape them into strivings and adversities, contests and rewards, vanquishings and setbacks."
The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.
This story places mediators in a role that is very different from the role played by decision-makers in litigation. Rather than being heroes of moral vindication to whom wronged parties appeal for justice, mediators promote and model collaborative striving to overcome conflict. This plays out in many accepted techniques in mediation. Mediators, for example, often seek "commitment" from participants to the process of mediation, although mediators are careful not to extend this commitment to a commitment to agree. This commitment to process is a proxy for a commitment to collaborate to seek to resolve conflict, thus incrementally moving participants away from contested litigation and towards collaborative problem solving. Similarly, mediators often "reframe" participants' statements in order to emphasize "common ground." This is also an effort to move parties away from a morally charged contest and into collaboration. Finally, mediators encourage and model collaboration through a positive message of optimism and progress towards resolution, even when (or, perhaps, especially when) impasse appears likely.
Moreover, mediation approaches the narrative movement from Efforts to Restoration of Steady State in a very different way than litigation. Whether the Steady State is Restored or Transformed constitutes what I have earlier characterized as a "fork in the road" in the Austere Definition of Narrative. The very language through which litigants seek redress of grievances - to "be made whole," "to pay your debt society" (with its implication that payment of the debt would return the ledger to balance), even the word "remedy" - implies Restoration. In contrast, mediation tends to reject Restoration as a state to which the parties (and society as whole) should or even can return. Rather, mediation seeks Transformation on the part of all disputants so that conflict is resolved. It does so by embracing the notion that perceptions of the world (including perceptions of the actions of others) are unstable, thus enabling parties to appreciate alternative perspectives as a way to promote resolution of conflict. Mediation, therefore, does embody a plot that adheres to the narrative movement described by the Austere Definition, albeit in ways that are utterly alien to the morality tale of the story of litigation. The story of mediation can be characterized as follows:
Steady State: Whatever Each Party Views as Pre-Conflict
Trouble: Whatever Each Party Views as Constituting Conflict
Efforts: Collaborative Striving To Overcome Conflict as Modeled and Promoted by Mediator
Transformation of Steady State: A New Relationship Among Parties
While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality.
In yet another 2-1 opinion on mediation confidentiality -- Cassel v. Superior Court -- California's Second District Court of Appeal grapples with hard facts that made bad law.
In conversations between litigation counsel and its client, Cassel, held on the days immediately preceding mediation as well as on the day of the mediation itself, Cassel allegedly told his attorney - Wasserman - that he would be willing to accept something north of $1.25 million to settle the case. On the day of the mediation, Cassel signed a settlement agreement providing for payment of $1.25 million. Cassel thereafter sued his attorney for legal malpractice, alleging that Wasserman "forced him to sign the settlement agreement for $1.25 million, rather than the higher amount he had told Wasserman . . . was acceptable." (if you're interested in the 411 on mediation advocacy malpractice, see my recent post Yet Another Path to Attorney Malpractice in Mediation Proceedings: Coerce Your Own Client)
Before trial of the malpractice action, Wasserman filed a motion in limine asking the trial court to preclude the introduction into evidence of any testimony concerning Cassel's [otherwise attorney-client privileged] communications about the sum he was willing to accept in settlement. The trial court granted the motion, holding that these communications - undeniably conducted in preparation for the mediation - were protected by mediation confidentiality under both the plain language of Evidence Code section 1119 and the Supreme Court decisions interpreting it.
The majority on the appellate panel disagreed for the following reasons:
Communications between a party to mediation and the attorney representing him in that mediation are not part of the mediation "process" if they are not communicated to either the mediator or the opposing party because California law defines mediation as a procedure in which "a neutral person . . . facilitate[s] communication between the disputants to assist them in reaching a mutually acceptable agreement.”
"For mediation purposes, a client and his attorney operate as a single participant."
Once the court collapses the attorney and client into a single "participant," there are no mediation communicationsamong participants to protect, or, as the Court more formally stated: they were not communications between 'disputants' and the 'mediator,' as required to come within the definition of a 'mediation' or 'mediation consultation' and, therefore, to qualify for protection under mediation confidentiality."
"the fact that Cassel or his attorneys may have discussed a specific dollar amount for settlement" did not necessarily make it a communication that, in the WimsattCourt's words "are materially related to, and foster, the mediation," because "some of the communications were more related to the civil litigation process as a whole rather than to the mediation."
the most principled (but not necessarily correct) reason for the Court's holding: the attorney and its client were "not within the class of persons which mediation confidentiality was intended to protect from each other—the “disputants,” i.e., the litigants—in order to encourage candor in the mediation process."
finally, the Court's holding:
With start of trial within two weeks, the meetings and accompanying communications between Cassel and Wasserman . . . were for trial strategy preparation, not just for mediation . . . The crux of the communications was that Cassel wanted his Wasserman Comden attorneys to honor his wishes, but they resisted to the extent, according to Cassel, that they breached their duties to him as his counsel. Neither Cassel nor Wasserman Comden assert that the communications contained information which the opposing party (or its representatives) or the mediator provided during mediation or otherwise contained any information of anything said or done or any admission by a party made in the course of the mediation. For the foregoing reasons, we conclude that the communications solely between Cassel as a client and his lawyer, Wasserman Comden, do not constitute oral and written communications made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” protected by section 1119, subdivisions (a) and (b) or communications by “participants” protected by section 1119, subdivision (c).
Huh?????? Because separate caucus mediation communications between attorney and client about the sum the client is willing to settle the case for are not communicated to the mediator or the opposing party during the mediation (especially if the attorney fails to communicate the client's expressed wishes?) they cannot be considered "communications made 'for the purpose of . . . a mediation consultation"??
This is perhaps the most convoluted reasoning of any appellate opinion in memory. I'd prefer a decision that just came right out and said something along the lines of - sure the communication falls squarely within the language of the confidentiality statute, but we don't think it ought to apply where a client is suing his attorney for duress in the course of a mediation proceeding. The Court is justifiably worried about saying that because the Supreme Court has repeatedly cautioned the lower courts not to make court-crafted exceptions to mediation confidentiality. (See Simmons v. Ghaderi)
Intellectual dishonesty never got any court anywhere near the goal of justice. This might just have been the case that made the Supreme Court relent and say, "o.k., in this extremely narrow circumstance, we'll permit an exception to the statutory provision." If the Supreme Court refused to budge, this case just might have persuaded the California legislature to make a few necessary exceptions to mediation confidentiality. Now, unless the appellate court reconsiders and follows the wisdom of the dissenter, Californians won't be given the opportunity the common law creates to "course correct" the law-making process to meet the challenges of unintended legislative consequences.
As the dissent correctly observes:
In the end, the majority‟s analysis of section 1119, subdivision (a), seems to be founded primarily on its concern that protecting private communications between a client and his or her lawyer under the rubric of mediation confidentiality may shield unscrupulous lawyers from well-founded malpractice actions without furthering the fundamental policies favoring mediation. That may well be true; but, respectfully, it is not our role to make that determination. Rather, it is for the Legislature to balance competing public policies and to create an exception to the statutory scheme governing mediation confidentiality where it finds it appropriate to do so.
For those more interested in Prejean than in mediation confidentiality, here's an analysis of the Prejean/King dust-up with the Prejean money quote: "I don't see anywhere in the Bible where it says you shouldn't get breast implants."
And if you think mediation can't be as dramatic as courtroom "gotcha" moments, here's the proof that anything at all can and does happen in those "confidential" rooms:
It was reported by TMZ.com, who broke the story of the lawyers' gambit, that the lawsuit was settled within seconds of the sex tape being shown to Prejean. Just to make the episode even more embarrassing for the 22-year-old, her mother was also attending the meeting at which the tape was shown.
Do remember that California law only precludes parties from: (a) introducing confidential mediation communications into evidence; and, (b) obtaining evidence of those communications in discovery. Although sub-section (c) of section 1119 broadly provides that mediation communications "shall remain confidential," no one to date has suggested that disclosure of those communications gives rise to a cause of action in favor of any party opposing their disclosure to the general public.
Thanks to google translate (daily destroying God's work on the Tower of Babel) I can bring you this mediation war story (loosely and imperfectly translated from a German mediation blog that I'm sorry I've lost the link to).
Before the trial of a wrongful termination case, the parties meet to mediate. In separate caucus, the employee tells the mediator that he is working for a competitor. The employee shares his concern that the revelation of his new employment could make him liable to his former employer for breach of the employee's non-compete obligation. In a separate caucus with the CEO, the chief executive reveals that the true reason for his failure to provide the contractually required advance warning of discharge was his fear that the discharged employee would learn of the CEO's on-going affair with his secretary, threatening the destruction of that valued relationship. Back in joint session, the mediator adds "non-compete waiver" and "immediate departure" to the brainstorming white board. The litigation promptly settles.
These are the party "interests" we're always talking about -- one -- the affair -- that is strictly "irrelevant" to the legal proceeding and one whose revelation (working for a competitor) could result in a counter-claim for breach of contract and fiduciary duty against the employee and a cross-action against his new employer for tortious interference with contract and prospective economic advantage, as well as potential causes of action against both of them for the theft of trade secrets.
If the mediator urges the CEO to exchange a waiver of the non-compete clause for the continued secrecy of his affair, has the mediator crossed the line from neutrality to advocacy? If and when the company learns the former employee was working for its competitor at the time the case was settled, will it attempt to rescind that agreement on the ground that it was procured by fraud (the concealment of facts material to the waiver)? And what are the duties of the company-attorney? Doesn't the affair create a conflict of interest between the company and the CEO? Does the attorney have the duty to inform the Board of Directors that its Chief Executive is waiving a valuable right in order to keep a relationship that is surely toxic to the conduct of the company's business a secret?
And what of the reputation of the mediation process itself? Is there something unsavory going on here - something that is both "outside the law" and outside the principled reason communications in mediation proceedings are protected by the law as confidential, i.e., to encourage party openness rather than to permit party deception?
These questions should interest everyone involved in the mediation process and should trouble the sleep of mediators everywhere. Because our process is conducted in secret, it is prone to abuse unless we - its practitioners - guard against deception and continually ask ourselves whether our interventions are in keeping with our obligation to be impartial.
Here are questions that we should ask ourselves whenever something in the back of our mind or a corner of our heart is telling us we might be doing more harm than good.
If I were permitted to, could I share my decision with everyone?
Is it legal?
How does the decision make me feel about myself?
Who does this decision negatively impact?
Why am I making this particular decision?
Have I clearly defined the problem requiring a decision to be sure I'm addressing the correct issue?
Does this decision serve the company or me personally?
Is the decision based upon facts consistent with fair play?
Is the decision consistent with organizational values and culture or my own personal system of ethics?
Is the decision fair and balanced to those it impacts?
I spent my day Saturday at the annual convention of the Southern California Mediation Association (kudos to attorney-mediator Phyllis Pollack for a fabulous conference!) Ken Cloke spoke eloquently on conflict systems and what mediators can do to "save the planet." I took his presentation (characteristically and densely verbal) and added images to break up the text hoping that Ken won't mind supplementing the English language with pictures).
I highly recommend Ken's presentation (which was incredibly eloquent at the conference and not limited by the hard bruising text against text can do) as well as, of course, his brilliant and visionary book - Conflict Revolution.
(cartoon generously provided by the brilliant Charles Fincher at LawComix)
O.K., I'm MUCH TOO CLOSE to this case but nevertheless intrigued by the following comments in the Recorder's recent article, Judge Puts on the Brakes While Heller Sides Mediate.
Judge Dennis Montali has canceled the first hearing on a liquidation plan in the Heller bankruptcy, pending the outcome of mediation talks between former shareholders and creditors.
Heller's creditors and at least four groups of shareholders appeared for their first mediation conference on Friday before Judge Randall Newsome for the U.S. Bankruptcy Court for the Northern District of California.
J. Scott Bovitz at Bovitz & Spitzer, a mediator in the bankruptcy mediation program in the Central District of California, said Montali is essentially telling everyone to stand down and cease fire.
"The man can read the tea leaves as good as any bankruptcy judge I know," Bovitz said.
"I speculate that Judge Newsome has told Montali there is some potential common ground in this case and we need more time to sort it out," Bovitz said. "I don't anticipate a long delay, because Newsome is not a patient fellow. That makes him an excellent mediator."
I've been accused of Kumbaya here (ask some of my litigation opponents if you want to check out the truth of that particular canard).
It's true that in addition to position-based competitive negotiation strategy and tactics in my mediation practice, I also facilitate what I believe to be the far more effective interest-based collaborative negotiation model, aimed at creating greater "deal" opportunities and avoiding mediation's bad reputation for splitting the baby in half (heard in the hallway: "anyone can divide by two").
Stories reveal something about yourself as a blogger (they’re personal)
Stories trigger emotions and the senses
Stories are conversational- they stimulate others to react and tell their stories
Stories provide hooks for readers to latch onto in your blogging (they’re relatable)
Stories grab and hold the attention of readers
Stories are memorable – while people don’t always latch onto facts and figures – a good story can be remembered for years
Stories illustrate your points in ways that can be much more convincing (and convicting) than other types of information
I was talking to a friend recently about ways in which to talk about a difficult subject with a friend whose opinions radically diverged from his own.
"Share your experience," I said. "Tell your story rather than expressing your opinion. An opinion is assailable. Your personal experience - the reasons why you feel the way you do about, say, gay marriage, abortion rights or any other "hot topic" issues - is unassailable. It will also create a bridge of understanding between you, encouraging your friend to share his experiences that lead him to disagree so fundamentally with you. You will inevitably find parts of your life-experience that are similar, sometimes even the same. Focus on those similarities in experience rather than differences in opinion and you will find yourself and your friend happily agreeing to disagree on positions, theories and beliefs, in favor of a new and potentially trusting relationship."
If that is Kumbaya, so be it. I must say, however, that it is also international diplomacy. War, after all, is both easy and lucrative. Peace, on the other hand, is difficult and underrated, even scorned. Choose wisely. Our own future and that of our children and our children's children depend upon it.
At present, if the total number of civil mediations were shared out evenly among accredited mediators, on average, mediators would manage fewer than one mediation a year.
Astonishingly, there are now half as many mediators as there are independent barristers in the UK. Even so, training organisations proliferate - and are encouraged to do so - and more mediators are accredited each week.
Let's be clear: this is a scandal.
If 3% of trained and accredited mediators get any work as a mediator, I'd be surprised. The excuse that training mediators is a good way to spread the word about mediation, to my mind, stinks. Ripping off everyone who shows an interest in mediation - it hardly needs saying - is no way to grow the market. This brings me to the third thing I'd change: we must accept that there is no connection between training mediators in greater numbers and the throughput of cases in greater numbers.
As a post-script to that point, I should add that some organisations have already changed tack. Faced with the moral dilemma of taking money and delivering absolutely nothing, or ceasing to train until demand has risen to merit it, some organisations have a new wheeze. This is mediation as - and I quote - "a life skill." Life skills, in my view, belong to the fashionable genre of self-help and bring mediation into the orbit of New Age spirituality, bioelectric shields, energy cocoons and magic crystals. I find the life skill argument disingenuous and mildly embarrassing. This is a direction from which mediation should turn sharply away.
I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.
This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable. I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause. But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result.
The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.
Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener. He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. “A lack of industry expertise has never caused a failure of the mediation process.
Here's my opinion (as if you didn't already know). As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle. I imagine the great predictor, the political scientist and Hoover Institute Fellow Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below). See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?
What is the "other guy's" decision cycle? It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision. Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other. Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber. Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.
You knew I'd come to my own "specialty" knowledge. Some of it is industry specific -- insurance and financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries. Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients. I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions.
I can read a financial statement.
At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal. And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.
I am also schooled in the "field" of conflict resolution. I understand at depth the cognitive biases -- universal tendencies in the way we think -- that inhibit rational decision making. I know how conflict escalates and, more importantly, how it can be deescalated. I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger); the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.
And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders.
I know this sounds like a lot of boastful self-promotion (it is). Please don't take my word for it. Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.
This is what I recall of mediator-hunting, however. I'd send out a list to my colleagues. I'd invariably get back opinions that were all over the board. He/she is great with clients but usually ends up splitting the baby in half. He/she talks too much and listens too little. He/she marginalized the client and made me look bad. He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client. This guy/gal can settle anything. Brilliant. Magical.
So what's a beleaguered litigator to do? Ask people you respect both inside and outside your law firm. Ask how the mediator handles the "process dimensions" of the mediation. Does he/she simply carry numbers and rationales back and forth between separate caucus rooms. Can she give bad news to both sides. Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions? Is the client happy with the result and with the process? After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved. You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.
I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.
So what's my answer to the question whether the mediator should have industry knowledge? That answer lies, as most legal problems do, in the gray zone. Industry knowledge helps. But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work. That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive. I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles.
Though I'm not wild about raising the over-discussed issue whether mediation is a profession, in writing L is for Lawyer (for the ABC's of Conflict Resolution) I had occasion to take a look at the characteristics of "professions." I thought I'd share them with my readers to add a little fuel to this long-burning fire because, frankly, L is for Lawyer is one of the most boring chapters of this book.
From the Wikipedia entry on the topic "Profession."
They forgot the part about getting to wear a costume! Hence the wig at right.
Skill based on theoretical knowledge: Professionals are assumed to have extensive theoretical knowledge (e.g. medicine, law, scripture or engineering) and to possess skills based on that knowledge that they are able to apply in practice.
Professional association: Professions usually have professional bodies organized by their members, which are intended to enhance the status of their members and have carefully controlled entrance requirements.
Extensive period of education: The most prestigious professions usually require at least three years[dated info] at university. Undertaking doctoral research can add a further 4-5 years to this period of education.
Testing of competence: Before being admitted to membership of a professional body, there is a requirement to pass prescribed examinations that are based on mainly theoretical knowledge.
Institutional training: In addition to examinations, there is usually a requirement for a long period of institutionalized training where aspiring professionals acquire specified practical experience in some sort of trainee role before being recognized as a full member of a professional body. Continuous upgrading of skills through professional development is also mandatory these days.
Licensed practitioners: Professions seek to establish a register or membership so that only those individuals so licensed are recognized as bona fide.
Work autonomy: Professionals tend to retain control over their work, even when they are employed outside the profession in commercial or public organizations. They have also gained control over their own theoretical knowledge.
Code of professional conduct or ethics: Professional bodies usually have codes of conduct or ethics for their members and disciplinary procedures for those who infringe the rules.
Self-regulation: Professional bodies tend to insist that they should be self-regulating and independent from government. Professions tend to be policed and regulated by senior, respected practitioners and the most highly qualified members of the profession.
Public service and altruism: The earning of fees for services rendered can be defended because they are provided in the public interest, e.g. the work of doctors contributes to public health.
Exclusion, monopoly and legal recognition: Professions tend to exclude those who have not met their requirements and joined the appropriate professional body. This is often termed professional closure, and seeks to bar entry for the unqualified and to sanction or expel incompetent members.
Control of remuneration and advertising: Where levels of remuneration are determined by government, professional bodies are active in negotiating (usually advantageous) remuneration packages for their members.Though this this is sometimes done in good intention but can be proven good when the partner, family or mentor recommend something contrary to the general norms.This was further buttressed in the world bank essay paper written by [Idiaro AbdulazeezPaper Challenges and associated solutions for companies working together in collective
action to fight corruption available at .link title This has caused for global audience and even the worldbank launched an international competition in it people are used to Some professions set standard scale fees, but government advocacy of competition means that these are no longer generally enforced.
High status and rewards: The most successful professions achieve high status, public prestige and rewards for their members. Some of the factors included in this list contribute to such success.
Individual clients: Many professions have individual fee-paying clients.[dubious– discuss] For example, in accountancy, "the profession" usually refers to accountants who have individual and corporate clients, rather than accountants who are employees of organizations.
Middle-class occupations: Traditionally, many professions have been viewed as 'respectable' occupations for middle and upper classes.
Male-dominated: The highest status professions have tended to be male dominated although females are closing this gender gap[dated info] Women are now being admitted to the priesthood while its status has declined relative to other professions. Similar arguments apply to race and class: ethnic groups and working-class people are no less disadvantaged in most professions than they are in society generally.[dated info]
Ritual: Church ritual and the Court procedure are obviously ritualistic.[who?]
Legitimacy: Professions have clear legal authority over some activities (e.g. certifying the insane) but are also seen as adding legitimacy to a wide range of related activities.
Inaccessible body of knowledge: In some professions, the body of knowledge is relatively inaccessible to the uninitiated. Medicine and law are typically not school subjects and have separate faculties and even separate libraries at universities.[dated info]
Indeterminacy of knowledge: Professional knowledge contains elements that escape being mastered and communicated in the form of rules and can only be acquired through experience.
Mobility: The skill knowledge and authority of professionals belongs to the professionals as individuals, not the organizations for which they work. Professionals are therefore relatively mobile in employment opportunities as they can move to other employers and take their talents with them. Standardization of professional training and procedures enhances this mobility..
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109.
My imagined grandchildren,  born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety)  and play many of the same games he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered) vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. 
Law, politics, society and culture also exist in the 200-year present of conflict resolution. In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
My grandparents', parents' and step-children's 20th Century was dominated by genocide on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. 
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs.  Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala. And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. >
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. 
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take or imprison" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
 Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
 The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
 Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
Regulations that govern certified mediators in Virginia would have more teeth under changes now under consideration.
Among the changes is a provision that would allow the Supreme Court’s Division of Dispute Resolution Services to immediately suspend mediator certification if a mediator refused to respond to concerns based on a complaint about improper behavior.
The DRS has extended the deadline for comments to the proposed rule changes to Oct. 30.
Documents marked with the proposed changes are available on the Web site for Virginia’s Judicial System (www. courts.state.va.us).
A member of the ethics committee convened to recommend changes said the changes will allow the DRS to have a more immediate response when there are credible allegations of ethics concerns about a mediator. Lawrie Parker, director of the Piedmont Dispute Resolution Center in Warrenton, said the proposed standards would allow action by DRS in certain cases without having to convene the complaint review committee for guidance.
A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct. Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them. Recent research sheds light on this issue.
According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.
Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.
“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”
From preparation to closing, some of L.A.'s most prominent mediators reveal the secrets of getting the best deal available for your clients.
Read former CAALA Trial Lawyer of the year Sandy Gage's article on Getting the Best Results in Mediation and AIM founder, mediator and trainer Lee Jay Berman'sTwelve Ways to Make Your Mediator Work Harder for You.
My ADR Services, Inc. colleagues Jan Schau, Michael Diliberto, Joan Kessler (the brains behind the entire issue!) and Leonard Levy round out the issue with Telling Lies, Telling Secrets (Schau); Opening Offers: Who's on First (Diliberto); The Defense Reveals Mistakes that Could Cost Your Client Money; and Kessler's incisive executive summary of them all.
Oh, yes, I'm here too with one of my mediation narratives, We Tell Ourselves Stories in Order to Live.
The online Advocate can be read like a magazine, complete with turning pages. It's a pretty cool online journal format in addition to being a great contribution to the growing literature on best mediation practices.
Dive in! The water is warm and the natives are friendly.
This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published. The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority. The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.
The appellate court affirmed the trial court's enforcement of the post-mediation settlement agreement based, in large part, on the mediator's sworn declaration that State Farm's formal agreement accurately represented the one signed by the parties during the mediation -- a matter that, if true, should have appeared on the face of both documents. See HANDWRITTEN SETTLEMENT SHOWS PARTIES' INTENT, CALIF. COURT FINDS
for a summary of the Court's decision.
What's wrong with this opinion? Let me count the ways.
In California, a mediator is presumed incompetent to testify under Evidence Code section 703.5. A good thing, too, since mediators are bound by the confidentiality provisions contained in Evidence Code section 1115 et seq. /1
Mediators are also required to be -- ahem -- NEUTRAL. Why was this mediator providing a sworn declaration to support State Farm's case against the policy holder? And does his drafting of the handwritten agreement at the mediation give him a personal or professional stake in its enforcement, thus further undermining his neutrality.
I'm not going to mince words about this. I believe it falls below the standard of care for a mediator to voluntarily provide a Declaration to the Court concerning anything anyone said during the mediation, including his opinion about what the parties an meant to say when they entered into a settlement agreement (an intuition that could only be based upon confidential communications). I also believe that its below the standard of care for a mediator to voluntarily provide a declaration to one party in support of a motion against another party to the mediation.The fact that the mediator provided a declaration in support of State Farm (and not the policyholder) is even more troubling when you consider the fact that insurance carriers are repeat players in ADR circles and hence a better source of business for mediators than single-player plaintiffs.
On the confidentiality issue, it is notable that the mediator-drafted agreement stipulated that:
The parties waive the provisions of [the] California Evidence Code relating to mediation confidentiality, rendering this agreement enforceable pursuant to . . . section 664.6.”(Italics added.)
The language used suggests to me that the purpose of the clause was to render the written agreement admissible in evidence to prove its existence -- "waive . . . mediation confidentiality [to] render this agreement enforceable." I know it doesn't say that. It says that the parties are waiving confidentiality PERIOD. It would surprise me if that's what the parties meant to do, i.e., open up to judicial scrutiny every communication uttered in the course of the mediation - in separate caucus and joint session. Would a mediator be liable for an ambiguously drafted agreement that leads to the loss of mediation confidentiality for the parties? I don't have an answer to the question but mediators might want to ask themselves whether they should be drafting the parties' agreements if they want their malpractice premiums to remain as low as they are today.
The following is the conclusion of an excellent post on the recent Pfizer-Justice Department settlement noting that it met "the People's" justice interests better than a judgment could have. The full article, Settlement and Justice for All by Robert C. Bordone & Matthew J. Smith** can be found here at the Harvard Negotiation Law Review.
More than honoring principles a court might champion, the negotiated settlement with Pfizer allows the Justice Department to secure commitments from Pfizer that would have been unlikely in a court verdict. In addition to the enormous cash payment, the settlement agreement allows for closer monitoring of Pfizer by Justice Department officials in the years ahead, ensuring corporate accountability and providing an extra measure of protection for consumers. As part of the deal, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the Department of Health and Human Services and will be required to maintain a corporate compliance program for the next five years.While a judge might choose to retain judicial oversight in a particular case, federal courts typically lack the expertise or resources to provide the kind of enforcement needed to ensure a systemic and long-term remedy in a technical or highly specialized case such as this.
The Pfizer settlement represents the best kind of transparent, efficient, and wise government law enforcement. It holds Pfizer wholly accountable for its actions, sends a strong and clear message to the public that corporate malfeasance will not be tolerated, provides for ongoing enforcement, and it does it all at a fraction of the cost of trial. While many cases should proceed to trial for reasons of precedent and public policy, negotiated settlement – when approached with wisdom and aplomb – can be a most efficient and effective means of law enforcement.
Thanks to Don Philbin for being one of the best navigators of quality in the ADRosphere! "Friend" him on Facebook here.
**/ Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program. Matthew J. Smith is a Lecturer on Law at Harvard Law School and a Clinical Fellow at the Harvard Negotiation and Mediation Clinical Program
Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career.
Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.
I've been told that "the market has spoken and it wants evaluative mediators." I'm sure the cancer "market" would also like to speak to its physicians. If I had malignant melanoma, I'd love to find a doctor able to cure it with rational argument, hard-ball tactics, and position-based negotiation. Surely he can convince my cancer that it's wrong and cannot win the battle simply by replicating itself over and over again. If he's such a good doctor, why can't he convince my adversary that it's just not right?!
You say the physician has specialized knowledge and experience in cancer treatment and knows better than I what will be the most efficient and effective medical protocol? Is my reasoning faulty? Do litigators know how to "treat" their conflict resolution problem with evaluative mediation because they've experience success with it? Maybe. But how do they know? Are they aware whether they "left money on the table" or paid more than the other guy was willing to accept? Who might be in possession of that extremely valuable information?
Uhhhhhhhhhhhhh, the mediator????
Let's talk to the social scientists about why people might prefer evaluation followed by a mediator's proposal. According to a recent Fast Company article, Why Your Gut is More Ethical Than Your Brain, people would rather put their fate in the hands of someone they’ve been told is a rational decision maker when an "emotional" decision-maker would have delivered a better result. The article at issue doesn't answer the question "why" but I have an educated guess. We trust reason and distrust our "gut." That's what we were taught in my scientific generation and we continue to trust these initial teachings even as science moves forward to prove that our feelings + our subconscious ("intuition") almost always make a better decision than our rational thought processes, which are generally simply rationalizations for what our "gut" decided without "us."
So what's the take-away here?
It is indisputable that one of the primary purposes of a settlement negotiation is the attempt to value an eventuality that cannot be predicted - the outcome of litigation. But value it we must -- at least within some reasonable range -- considering the thousands (perhaps tens of thousands) of variables in play -- the settled or unsettled state of "the law"; the ability of each party to make their narrative coherent at worst and compelling at best; the location of the court where the matter will be decided - downtown Los Angeles; Santa Monica; or San Francisco -- cities with very different "deciders"; the ability of each party to withstand the economic burdens imposed by the litigation; the capacity for one party's counsel to "bury" the other's; the veracity of the witnesses; the historic record for victory or defeat for this type of case in that type of industry; the personality, politics, or idiosyncrasies of the Judge; and, even the time of year during which the case is to be tried, not to mention the skill and experience of counsel for each side.
To these uncertainties we must add the cognitive biases to which we are all vulnerable no matter how "rational" and scientifically-minded we are. These cognitive "tendencies" include our inclination to seek out and believe "facts" that support our position and to avoid, ignore or discount those that do not (confirmation bias); our tendency to discount as unworkable, without merit or downright evil suggestions our opponent forwards (reactive devaluation); our capacity to create patterns and narratives where none exist (clustering illusion); and, our unfortunate weakness of buying our own B.S. (self-serving bias) to name just a very few. (See Diane Levin's recent post on these and other cognitive errors here)
Despite the difficulty inherent in evaluating the merits of one's own case (and of the mediator's attempt to value each side's chance of victory based upon no admissible evidence and the untrustworthy nature of both party's factual narrative and legal analysis) a mediator helping litigants and their attorneys settle a case must be capable of asking pointed questions that will counteract the parties' biases to some degree and help them understand the truly unpredictable nature of a law suit's resolution.
All of that being said, anyone who believes that this evaluative process is at the heart of a good mediation needs to spend some time with better mediators. A truly brilliant mediator (and I am not here counting myself among them) helps the parties move beyond the very narrow issues raised by the litigation and past the spoils to be won or lost there. A gifted mediator is able to help the parties ascertain their own as well as their negotiation partner's true preferences, desires and needs; to open the bargaining session up to include every item of value the parties have to exchange; and, to locate and resolve, for each party, the experience of injustice that brought them to the difficult and pricey decision to hire outside litigation counsel in the first place.
What we litigators tend to forget in the heat of our battles to win the discovery motion; prevail on our request for a pre-judgment attachment; procure the testimony we need for the silver-stake motion for summary judgment; or, write the winning Petition for Writ of Mandate or appellate brief, is that our clients want to make a savvy, sophisticated and durable business deal that leaves them feeling (yes, feeling) that the settlement reached does not constitute a gross miscarriage of justice.
That's the view from this side of the mediation table after five-years of full-time neutral practice and twenty-five of litigation and mediation advocacy.
Like the trial lawyer facing a jury, a skillful mediator facing counsel and clients must provide both the most educated and honest rationale for his or her valuation of a party's chances at trial; the most empathic response to the clients' many expressions of anger at the injustice of it all; and the facilitation of a commercial negotiation in which making the best business deal is of far more importance than proving one's "case" right.
Do choose a mediator able to open up the hood of your opponent's case (and your own); to kick the tires; and, to note the rusted places under the thin coat of a recent paint job. If, however, "valuation" is the best your mediator can do, you need to raise the bar for excellence and experience the satisfaction you feel when your client says, "great job! It's a good settlement and a fair one as well."
One of my own favorite quotes about "changing the other guy's mind" is from commercial mediator Jeff Kichaven: "piling rationales atop one another to convince a litigator he is wrong is like raising your voice to communicate with a deaf man."
To settle a disputed matter, a person has to have a change of mind and here's where the problem starts. As Upton Sinclair said: "It is difficult to get a man to understand something when his livelihood depends on him not understanding it."
This is why mediation exists. But just because no one ever said it was supposed to be easy doesn't mean it can't be annoying. Sometimes that frustration has to find expression.
Below is the most astounding expression of irritation and frustration and rage I have ever read.
"I BESEECH YOU, IN THE BOWELS OF CHRIST, THINK IT POSSIBLE YOU MAY BE MISTAKEN."
Here's the quiz:
1. Who said these words and how close to a cardiac infarction was he or she on a Scale of 1-10?
2. Can you beat it with your own expression of utter frustration and anger? (In 25 words of less, please.)
A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.
I was co-mediating the final day of a construction dispute with twenty-five to thirty parties when my colleague lost his cool. By two in the morning, a single sub-contractor was holding all parties hostage to his refusal to settle even though he was alone in having achieved all but complete victory – the Plaintiff having agreed to exchange mutual releases to settle with him. Nevertheless, the sub adamantly refused to give up his right to bring a malicious prosecution action against the Plaintiff.
“He needs a woman’s touch,” my co-mediator suggested.
Male or female, someone needed to learn why this single defendant had become so intractable. A bit of questioning revealed that early in the litigation, the sub’s attorney had inadvisably assured his client that he could win a malicious prosecution suit. Counsel was not about to back down now, particularly after he’d been harangued by my colleague in front of his client. I was all but certain the sub had no intention of spending further money litigating the case. Why was he clinging to his right to sue? The three of us talked for 45-minutes while the rest of the parties waited. I don’t know what it was in that conversation that revealed the problem to me. I only know that at some point I realized that the sub could not justify the money he’d paid his counsel unless he emerged from the litigation victorious.
“You know,” I finally said, “you’re the only defendant who actually won here.”
“How do you figure that?” asked the sub, eyeing me with suspicion.
“Everyone else, no matter how unlikely their potential liability, had to pay the Plaintiffs to be released from the case. Your attorney is the only attorney who negotiated a settlement for nothing. He won!
And the case promptly (and finally) settled.
Remember that settlement is not about power or authority. It’s about influence and you cannot influence another human being by bullying him. You can only influence him by asking questions, listening carefully to the answers, and responding to the need he is expressing. Not only will hectoring fail to produce the desired result, it will usually trap the bullied party into a position he has no actual desire to maintain. Restrain the pitbulls and release the attentive questioners. Theirs is the Kingdom of Resolution.
John Richardson, that worthy and thoughtful New York mediator, has brought to our attention a decision by Hon. Mr. Justice Ramsey of the Royal Courts of Justice in England that seems to render unenforceable the commonplace contractual provisions immunizing mediators from testifying as to the conduct of the mediation.
In Farm Assist Limited vs. DEFRA, dated May 19, 2009, claimant sought to set aside a settlement agreement obtained after a mediation that took place in 2003, on the ground that it was entered into under economic duress. Defendant requested that the mediator, Jane Andrewartha, be compelled to give evidence as to what happened at the mediation. Claimant did not object. The court ordered that, in the first instance, she produce her files and, eventually, that she give a witness statement.
If you take the time to read the opinion, you'll see that the confidentiality protections at risk here do not arise solely from the parties' contract, but also from the case law. Not good news for U.K. mediation practice.
Breach a Specific Contractual Promise Regarding Structure or Outcome
Engage in the Practice of Law
Engage in the Practice of Law Badly
Breach Confidentiality Externally
Breach Confidentiality Internally
Maintain Confidentiality Inappropriately
Inflict Emotional Distress on a Disputant
There's also a (disturbing) "head's up" note in a 2006 BYU Law Review "Comment" that mediators may eventually be open to lawsuits for breach of quasi-fiduciary duties. Despite noting the antipathy in the legal and mediation community in the past for imposing fiduciary duties to the parties, the Comment concludes by predicting that:
mediators may likely owe some level of fiduciary obligations to the parties in certain mediation proceedings--primarily fairness, impartiality, confidentiality, disclosure of conflicts of interest, good faith, and no false misrepresentation. This knowledge allows mediators to prepare for the trends of the near future, when mediation will likely take an established place among the professions, with the accompanying benefits and liabilities of such a position.
Because the vast majority of my litigation and mediation clients were and are corporate entities or highly successful entrepreneurs, executives or managers, I was and am rarely in a position to coerce a client into doing something it didn't want to do.
As a mediator, however, I hear stories.
Some of the stories I hear are told by disgruntled individuals who feel as if they were coerced by their own counsel into settling their litigation during a mediation. Others have reported that they felt ganged up on by their attorney and the mediator. Some have complained that they were unduly pressured to stay in the mediation process long after they were too tired or hungry to think clearly.
These stories are troubling to any mediator who values the good reputation of the mediation process itself. They should also disturb attorney mediation advocates.
Is it below the standard of care for an attorney to subtly (or not so subtly) pressure his or her client to settle litigation? Under certain circumstances, I think it is. Here's the bad news. If a litigant is unhappy with the outcome of mediation, he or she is far more likely to bring a complaint (or lawsuit) against his or her own attorney.
In a 2006 article in the Ohio Journal on Dispute ResolutionTAKE IT OR LEAVE IT. LUMP IT OR GRIEVE IT: DESIGNING MEDIATOR COMPLAINT SYSTEMS THAT PROTECT MEDIATORS, UNHAPPY PARTIES, ATTORNEYS, COURTS, THE PROCESS, AND THE FIELDPaula M. Young, Assistant Professor at the Appalachian School of Law cites Mel Rubin on "settle and sue" cases which Rubin suggests are on the rise among clients unhappy with the outcome of a mediation. Rubin "also suggests that if a client is unhappy with the outcome of mediation, he or she is more likely to sue his or her attorney for malpractice. Id.
What might actionable attorney mediation malpractice look like? Young cites the example of one woman who told the following story:
I refused to sign several times. My attorney then began yelling at me to “shut-up and sign the damn thing” I wasn't allowed to leave until it was signed . . . . The words, “NO I can't sign this,” fell on deaf ears. I was so unfamiliar with the process of it all and what it meant and what the outcome entailed.
Young has a systemic solution for problems like these: procedural "justice" during the mediation itself and grievance procedures for dissatisfied litigants. She writes:
To the extent the procedural justice research indicates that parties who perceive they have received procedural justice in mediation also perceive that the negotiated outcome in mediation is fair, we would expect that these parties are not likely to later sue their attorneys for malpractice. Even when the client has little trust in his or her attorney, a mediation process that enhances procedural justice allows the party to assess directly whether he or she feels exploited or mistreated in the process.
Even if the mediation process itself lacks procedural justice and the client accordingly remains dissatisfied and suspicious, a well-designed grievance system, emphasizing procedural justice from the client's perspective, may give the client the reassurances he or she needs. A client who suspects collusion between his or her lawyer and the neutral could seek the informed opinion of the regulatory body, without ever having to file a legal malpractice law suit.
Remember that we tend to stumble and fail when we're Hungry, Angry, Lonely (marginalized) or Tired (HALT) and so do our clients. When I notice litigants flagging or attorneys losing their tempers, I suggest a walk around the block, a nutrition break (not eating more cookies) and, in extreme cases (someone becomes ill during the course of the session) reconvening at a later date. Remember how powerful and all-knowing you appear to be to your clients and what a strange and frightening land the "justice system" is for those who are encountering it for the first time.
There's no better defense to professional negligence actions that the quality of your relationship with your clients. Keep channels of communication open. Demand that your adversary and the mediator treat your client with respect. At the first sign that a mediator is exercising undue influence on your client, say something, just as you would if opposing counsel were harassing your witness at a deposition. Follow these dictates and you'll rarely if ever be worrying about calling your insurance carrier.
As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here).
Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact. Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation. Too bad. The mediation proceeding is given greater protection than given to penitents in a confessional.
But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.
California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.
As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into. Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.
Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence.
Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.
According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123. As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."
I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119 (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy'scomments and my response about the scope of mediation confidentiality in an earlier post in this series).
Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.
In short, don't get fancy. Just stick with the language of section 1119
If you didn't already understand how to protect your mediated settlement agreement from challenge, you do now.
But wait a minute! Is that what you want?
What if your client entered into the agreement only because its opponent made a material misstatement of fact? What if one of your co-defendants challenges your settlement agreement as not having been made in good faith, thus exposing your client to potential liability for indemnity or contribution? Can you win the "good faith settlement" motion without the testimony of the participants in the mediation?
Parties are entitled to walk out of a mediation with a whole range of outcomes, from a completed settlement agreement, to a term sheet, to an oral understanding, to a promise to think over the other side's last offer, to a promise to see the other side in court! As long as both sides understand what they are getting at the conclusion of the mediation session, there should be no basis for a malpractice claim for any of these outcomes. If the parties choose to use a term sheet with no language in it indicating that they have settled their case, they just need to understand that any party can renege on the deal after the mediation. In some cases, that may be what the parties want, to give them some time to think the whole thing over.
Joe's comments put the emphasis in mediation advocacy back where it belongs -- on the fully informed assent of the parties and on the strategic plans of litigation counsel.
So here's yet another way to commit legal malpractice as a mediation advocate: don't fully understand the implications of mediation confidentiality on the final resolution of your client's dispute. I'll just bullet point ways to protect yourself and your client below and ask others to chime in with their recommendations:
if your client is relying upon the veracity of its opponent's representation in entering into the deal, write that representation into the agreement or deal points, i.e., "Party A and Party B both understand that Party A is entering into this agreement based upon the following representation/s: .................................... " Then you can include any other language that makes sense in the context of the agreement. You can provide that Party B's production of documents confirming its representations to Party A is a condition precedent to Party A's obligations under the settlement agreement. If your client simply needs protection down the line in the event FACT X proves to be untrue, you can include a liquidated damage clause in the agreement or provide for an expedited means of resolving any dispute resulting from the falsity of FACT X ; or, you could provide that the falsity of FACT X will render the settlement agreement null and void;
you could avoid the problems created by the strict enforcement of mediation confidentiality by agreeing with your opponent (in writing!) that the neutral-facilitated settlement negotiation is not a mediation to be governed by Evidence Code section 1115 et seq. but a settlement conference governed by Evidence Code section 1152 et seq. This option would be a useful one to a defendant who is settling the action separately from co-defendants who might bring a motion challenging the good faith of your settlement.
Less drastically, you could simply include in your settlement agreement a provision by which the parties agree that the mediation confidentiality protections as codified in section 1119 will not apply in the event a co-defendant challenges the good faith of the settlement. Remember that the mediator is considered incompetent to testify so that your waiver of mediation confidentiality in the event testimony is needed to oppose a challenge to the good faith of your settlement may not permit the mediator to testify at the hearing (or to offer a declaration in opposition to the motion) as well he or she -- a neutral party -- shouldn't.
You're a litigator. There are probably hundreds of ways to skin this particular cat. The keys are knowing and understanding the law of mediation confidentiality and thinking through all of the implications it might have on your clients' rights or interests down the line. That's what we litigators do and we shouldn't abandon those strategic considerations just because we believe we're settling this case for good and it will never come back to haunt us or our clients again.
Remember, you are in control of the process. If you don't like mediation confidentiality, tailor a confidentiality agreement to suit your circumstances. You will, of course, have to "sell" your proposal to your opponent. The best time to do that might well be at the end of the mediation rather than at its commencement. By that time, your opponent is pretty darn committed to the resolution of the lawsuit. His client is already planning on ways he can more profitably spend his time and money other than on further litigation, attorneys' fees, and court costs. The plaintiff is, I guarantee you, already spending the settlement monies or planning the celebration back at the office and wondering whether this might lead to the promotion he or she has been waiting for.
Yet another way to commit legal malpractice (and how to avoid it) tomorrow!
That's not a summons and complaint for malpractice, is it? Because of something you didn't know about ADR advocacy?
C'mon! ADR is all about avoiding litigation, not creating it, right? The good news is that there hasn't yet been an ADR malpractice suit of note. The bad news is, I see ADR negligence at least once a month and am holding my breath against the day lawsuits began a'poppin.
To help you avoid ADR malpractice, here is just one of ten pitfalls to be covered in this series that can make you a malpractice magnet for disgruntled clients.
write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
absent this language, a party with buyer's remorse can resist the enforcement of a "term sheet" if he feels he was was coerced into signing it; entered into it based upon a misrepresentation of material fact made during the mediation; or, that it simply does not accurately reflect the terms the parties' orally agreed upon during the mediation
use the magic language of Evidence Code section 1123 and your "term sheet" should be enforced and your client's bargaining partner precluded from introducing into evidence (pursuant to section 1119) any statement made by anyone during the course of the mediation, including allegedly coercive, misleading, or, fraudulent statements of fact allegedly inducing his consent.
the cure (from Caplan again) is the following "belt and suspenders" clause:
The parties intend this Agreement to be admissible, binding and enforceable, and subject to disclosure within the meaning of those terms in California Evidence Code § 1123 (a), (b) and (c), and this Agreement is expressly not privileged from disclosure under California Evidence Code § 1119. In addition, if the formal Settlement and Mutual Release Agreement contemplated hereinabove is [e.g., not executed within ten (10) days of the date of this Agreement] this Agreement may be enforced by motion under California Civil Code § 664.6 and the court shall retain jurisdiction over this Agreement until performance in full of the settlement terms herein.
Below is an Orange County Superior Court form that satisfies the requirements of section 664.6 (providing an expedited enforcement mechanism for the settlement agreement) but which fails to recite all of the magic words including admissible, enforceable, and subject to disclosure. So please don't trust any form other than your own!! Even forms issued by the Courts. The fact that you are entitled to an expedited hearing under 664.6 to enforce your mediated settlement agreement does not mean that you will be permitted to enforce the agreement against your opponent's will.
Of course the best way to avoid claims arising from buyer's remorse is to create a durable settlement that all parties will want to enforce. That means avoiding agreements that your client enters into when he or she is hungry, angry, lonely (i.e., sidelined) or tired (HALT). It also includes agreements that feel coerced by an overly aggressive mediator preying on the weaker of the two (or three or four) parties. And yes, Virginia, there is always a more vulnerable party; all mediators recognize who that is; and, too many mediators make a beeline for that party's soft under-belly.
Another way to avoid challenges to the mediated settlement agreement include:
bringing a fillable template settlement agreement (and these days, also a Stipulation for the Entry of Judgment in the event of default on a payment plan) that is a complete, final and binding agreement that contains the "magic language" of section 1123 that all parties execute before they leave the mediation session (no matter how tired everyone is and how much everybody wants to just go home and deal with the inevitable nit-picking over the relatively inconsequential terms of the agreement tomorrow).
not letting your fear that the "details" might blow up the "deal" you've spent so many hours negotiating.You know how these deals go off the rails the following morning when your opponent begins to nit pick terms, often as a face-saving mechanism. Let the mediator help you close the deal right there and now, assisting the parties in resolving the minor terms that can blow up in your face if left until tomorrow.
And speaking of tomorrow, I'll have Tip No. 2 for avoiding malpractice litigation arising from mediated settlement agreements. Stay tuned!
For more posts on confidentiality in both California state and 9th Circuit district courts, click here.
Today's New York Times Op-Ed piece on "diplomatic engagement" (Terms of Engagement) as a strategy for "chang[ing] [Iran's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," offers good strategic negotiation lessons for mediators and mediation advocates alike. As Crocker explains:
[E]ach case of engagement has common elements. Engagement is a process, not a destination. It involves exerting pressure, by raising questions and hypothetical possibilities, and by probing the other country’s assumptions and thinking. Above all, it involves testing how far the other country might be willing to go. Properly understood, the diplomacy of engagement means raising questions that the other country may wish to avoid or be politically unable to answer. It places the ball in the other country’s court.
Litigation is an extremely good way to "exert pressure," on your negotiation partner by burdening it with the costs of waging the adversarial contest. The litigation itself not only "rais[es] questions and hypothetical possibilities" but through the process of discovery, it also "probes [the opponent's] assumptions and thinking" and "test[s] how far [your opponent] might be willing to go" to achieve victory.
Parties disappointed with mediation and mediators are usually dissatisfied with the mediator's inability to engage in the final step of "engagement diplomacy" -- "raising questions that the [opponent] may use to avoid or be [positionally] unable to answer." A good mediator is unafraid to raise those difficult questions with each side of a dispute. But raising those difficult questions is not enough. A good mediator must also be able to deliver bad news to the parties in such a way that the parties are able to hear it.
If the goal of the negotiators -- the attorneys -- is to "change the[ir] [opponent's] perception of its own interests and realistic options and, hence, to modify its policies and its behavior," the negotiators and their clients must be prepared to:
reveal to the mediator
hidden constraints preventing them from modifying their demand or offer; and,
hidden interests that must be served in order to justify any such modification
candidly acknowledge (in separate caucus)
the weaknesses of their position; and,
any constraints on their client's willingness and ability to put their convictions to the test of a jury verdict or judgment by the court
help the mediator help their clients understand that most litigation is based upon differing subjective experiences of the same "objective" series of events so that no one must admit that the other side is "right" and their own side is "wrong"
An example of the lengths to which people will go to be "right" is unfortunately provided to us today by the obituary of the first anti-abortion advocate to be shot and killed for his beliefs. The slain activist spent years protesting outside the car dealership owned by Tony Young, who explained how the protests finally ended (from Slain Abortion Opponent Loved the Controversy)
Mr. Young said that after about three years of protesting outside his dealership, Mr. Pouillon came in and offered a truce. “ ‘Tony,’ ” Mr. Young said the exchange began, “if you would just agree that I’m right on my beliefs, I’ll stop.’
“I just told him, ‘Sure, Jim, you’re right,’ ” Mr. Young said, chuckling. After that, he said, Mr. Pouillon moved on.
Although few cases could so easily turn on the dime of a semi-sincere acknowledgement that the other side is "right," most attorneys would be surprised by how much value can be generated by acknowledging that the other side's version of the facts or the law is not crazy, evil, bizarre, intellectually dishonest or asserted in bad faith. See The Biggest Lie in the Business: It's Only About Money. As I noted there:
The social scientists who study these things say that the way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected.
Conversely, research shows that business people are reluctant to recommend legal action if they believe that they and their company have been treated respectfully.
By the same token that business people are reluctant to recommend legal action if they believe their company has been treated respectfully, they are often far more willing to settle litigation if they believe their positions have been heard and acknowledged as having been made in good faith. For those headed toward settlement discussions or mediation, Crocker has good advice:
[B]y far the greatest risk of [diplomatic] engagement is that it may succeed. If we succeed in changing the position of the other [side's] decision-makers, we then must decide whether we will take yes for an answer and reciprocate their moves with steps of our own. If talk is fruitful, a negotiation will begin about taking reciprocal steps down a jointly defined road. Engagement diplomacy forces us to make choices.
If litigators and their clients are aligned in the interest of settling litigation, they must prepare themselves to take "yes for an answer" by having in place a strategy of engagement that will permit them to reciprocate the other side's moves with steps of their own. A good mediator should be capable of bringing all parties to the on-ramp of the road that counsel and their commercial clients are well-placed to and highly skilled at jointly defining.
Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice. - Margaret Atwood
Every year, a town in Japan named Taiji kills 2300 dolphins and small whales. This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry. Here's his account of the making of The Cove.
What did Flipper's trainer want to do? He wanted to stop the slaughter. Here's where the Harvard Negotiation article on power in negotiation comes in. I'll let the authors of the Harvard article speak for themselves.
In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that “A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent. Thus viewed, parties with asymmetric resources may wellsharea mutually dependent relationship.
It is also worthwhile tonote that power sometimes lies in the eye of the beholder. A party’s decisionsmay be shaped as much by its perception of the situation as by objective reality. Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"
The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents.
One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.
There are many moments of shaming and bearing witness in The Cove -- the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here). There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover. And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.
I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.
When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.
I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!
You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.
The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.
[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.
But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.
Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust. As Power and Trust in Negotiation and Decision Making asserts:
Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.” It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years. Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation
In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators: the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.
O'Barry's documentary is a call to action that asks us to respond to our "better angels." If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing.
As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."
The subjects covered in this issue include the chaotic state of federal mediation confidentiality protections [by Phyllis G. Pollack]; the dangers of [mediator] class action fairness declarations [by Jay McCauley and Jeff Kichaven] and the difficulties inherent in applying federal conflict of interest laws developed with attorney advocates in mind to attorney neutrals and their law firms [by Robert J. Rose].
Though these issues are of critical importance to daily practice in our federal courts, very few advocates are aware that these problems exist, let alone how they might be fixed. The Resolver’s first mission is to make available to FBA members the highest level of scholarship and best practices in federal mediation and arbitration practice. The second—and perhaps the most important— mission of The Resolver, is to commence a robust and sophisticated conversation among federal lawyers, on the one hand, and district and circuit court mediators on the other, about the means by which we can more efficiently, effectively, and durably help our clients resolve their litigated disputes.
(from the Letter from the Editor by yours truly)
You'll also want to read the Message from the [ADR] Section Chair, Simeon H. Baum, whose energetic leadership is making the ADR Section of the Federal Bar Association a dynamic new force in the ADR field.
As Baum's message notes, we have great things in store for the work of the FBA's ADR Section. Simeon writes:
For those of you who are interested in what you encounter in The Resolver, we welcome you to participate actively in the FBA. Become a liaison to the section on behalf of your local chapter. If you have thoughts on pending or possible legislation that affects the dispute resolution field . . . please feel free to share them with us—publish your piece in the next issue of The Resolver.
Or, reach out to the section and your chapter and look to put your cause at the forefront of the FBA’s legislative agenda. We can take advantage of Bruce Moyer and the FBA Governmental Relations Council to cultivate the best in the ADR field through national legislation, where appropriate.
If you have a CLE program on ADR that you would like to promote, please let us know through the ADR Section, and the section can collaborate with your local chapter [Board member Jeff Kichaven is the CLE Chair this year and you can reach him at the link above].
Along these lines, the section is hoping that FBA chapters will host fireside chats or roundtable discussions featuring the circuit mediator for that area [and local Board members will be reaching out to those chapters to initiate those roundtables.
These CLE events—perhaps accompanied by a breakfast, lunch, or cocktail reception—can provide an excellent opportunity not only to enhance the use of those ADR forums, but also to meet with likeminded neutrals and representatives.
With this first issue of The Resolver at hand—thanks to the efforts of editor Vickie Pynchon, our generous contributors, and FBA sections and divisions manager Adrienne Woolley (firstname.lastname@example.org), we invite you to join us in the unending way of creative service to your clients, the bar, and society via the path of resolution.
Someone recently told me that you can't argue with a story, only with a position or another argument. That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, so often bridges gaps between the parties that yawn as wide as the Grand Canyon That's why I'm listing Asking Diagnostic Questions as the second most powerful means of breaking negotiation impasses.
Diagnostic questions are those that reveal your bargaining partners’ desires, fears, preferences and needs. Though your bargaining partner will never reveal its true bottom line, it may well acknowledge that it places a far lesser or higher value on the subject of litigation – real property, for instance -- than you do. And though your adversary will never acknowledge the rectitude, nor even often the good faith, of your legal or factual position, she may easily disclose that she needs the money she seeks to infuse capital into her business, to pay back debts, to put her children through college or to acquire much-needed catastrophic health insurance.
You may also find that your bargaining partner is willing to disclose whether he is risk averse or risk courting and whether his predictions for the future of an enterprise – yours perhaps – are more optimistic or pessimistic than your own. Once you learn what your opponent wants, needs and prefers, you can commence – or reconvene – a negotiation that is more tailored to your adversary’s desires; one that will increase the number and value of items both of you have to exchange with one another.
Just a few examples from my own practice:
a case concerning the repayment of over-paid health insurance benefits to physicians settled at a number the defendant said she would never pay when the Plaintiff revealed the existence of an agreement between it and a board member that no one else who was overpaid would get a better deal than he had.
a case concerning the dissolution of a partnership settled when I asked Partner A what his valuation of the enterprise's inventory was in a case to dissolve the partnership. Because he placed a far lower value on that inventory than did Partner B, Partner B (who planned to continue in the import-export business) was happy to accept A's valuation, offering to purchase it from him on the spot (and agreeing to a lower valuation of the good will of the partnership business than he'd earlier been prepared to acknowledge).
a property damage case settled when I asked the Plaintiff, in separate caucus, what he planned to do with the proceeds of the settlement. The defendant, who "knew someone in the business," was able to obtain the item Plaintiff wanted at a lower cost than Plaintiff could have procured it, bridging the gap between the parties' negotiating positions.
a patent infringement case settled when I asked the Plaintiffs what they were afraid would happen if they agreed to give the alleged infringer a license to manufacture and market the allegedly infringing product. Plaintiffs said they believed the market would "get really hot" in three years time, allowing the infringer to make a killing on their technology. When I asked the defendant what he thought about Plaintiffs' suspicions, he said he planned to phase the product out of his product line within three years. I suggested that the defendant agree to a graduated royalty which would require him to pay an unusually high percentage of its sales during the years Plaintiffs were convinced he'd be selling "their" product and at a time when Defendant swore he would not.
In a lemon law case, I asked the Plaintiffs to tell the mobile home manufacturer to explain why they'd purchased the $200,000 vehicle in the first place. Plaintiff's answer so undermined the defendant's "buyer's remorse" theory of the case that the matter settled quickly thereafter.
I asked a perplexed defendant why the Plaintiff had chosen to sue it out of the entire universe of Plaintiff's competitors. Defendant quickly responded: "because we have better people, more talent and potentially better technology. Plaintiff wants to remove us from the market" I thereafter brokered a deal involving a joint venture between the two companies using company A's talent and company B's far larger distribution network.
As you can see from these few examples, diagnostic questions break impasse on "pure money" cases, as well as in those where the parties more or less obviously have something other than money to trade. Once again, it is critical to remember that no one wants money but everyone wants something that money can buy. Ask the ultimate reporter question about your negotiating partner's fears, desires, wants and needs -- WHY? -- and you will see impasse dissolving before your very eyes.
With apologies to "staying on topic" purists, I give my Lit Major readers the literary passage that comes to mind whenever I think too long about asking questions:
try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don't search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.
I begin a series today on what I believe are the five most effective ways to break impasse. This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot.
Transform the dispute into an opportunity to make a business deal
Google’s CEO Eric Schmidt famously said that “litigation is just a business negotiation being conducted in the Courts.” If you look at litigated disputes in that light, the settlement option landscape immediately broadens. There are only certain remedies available in court or arbitration and those remedies may not be exactly what the parties are looking for.
If we remember that money is simply the means to obtain something else the parties desire – better distribution networks; insurance against future calamity; the security of knowing one’s intellectual property has not fallen in a competitor’s hands; health care; a college fund; even the acknowledgement that we have heard and understand our opponent’s point of view – we can add value to our negotiations before attempting to distribute it in a way that seems fair and just under the circumstances.
Often more important than finding commonalities between bargaining partners is locating those items that the parties value differently. A dollar may just be a dollar, but one company’s inventory, trade secrets or present pool of talent will seldom be worth the same in our competitor’s hands as it is in ours. In some cases our assets may be more valuable to another than they are to us, in which case we can choose the higher value as the central rationale for our proposal, remembering that where value is uncertain, the first party to put a price tag on it will “anchor” the bargaining range in his favor throughout the course of the negotiation.
Therefore, a savvy negotiator searches for both common and divergent interests in an attempt to put as many different options on the bargaining table as possible. Generating such options can melt impasse over hard “bottom line” dollar and legal position conflicts and transform a distributive negotiation session ("what I lose, you win and what you lose I win") into a business opportunity that will leave both parties better off than they could have imagined.
I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often. This week he praises CPR's new Early Case Assessment Guidelines. Praise from John is hard to come by. I join in his comments below and suggest that all my readers click on the link below for his excellent commentary.
The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment ; Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.” They certainly meet their objectives.
These are hard times and none of us is immune. I’ve been here before. In the early 1990s, my law firm announced we would ride out the economic crisis by henceforth buying legal pads without our firm name embossed on the binding. Layoffs of partners, associates and staff quickly followed. Some caught life rafts to other law firms; some were not so lucky. Those who stepped on others going up the compensation ladder were not treated well on their way back down. The water was cold and filled with sharks.
It seemed then, and seems now, that the entire profession has forgotten two critical principles of legal practice: clients, not profits, come first; and, partners see one another through the tough years in the same manner in which they share the profitable ones. Because people (our clients, our colleagues and our staff) are our only assets, I have five people-centered tips for surviving, perhaps even flourishing, in this challenging economic environment.
When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share. The highest bidding partner "wins" and buys out the "loser" at the "loser's" price.
The price set by each partner must be realistic, because if he "loses", the partner will have to sell at the price he set. Setting too low a price has a double adverse effect; the "losing" partner will be the seller at the lower price.
One of the burning questions the U.S. mediation profession faces is a difficult one: is it time to professionalize the field and establish more formal mechanisms for credentialing?
As of today, the private practice of mediation in the United States is unlicensed and unregulated by the state. No public licensing boards oversee or regulate the private practice of mediation. Barriers to entry into the profession are virtually non-existent; no degree, no experience, no training is required before you order the business cards that proclaim you to be a mediator.
As more people enter the profession, and as more consumers use ADR services, market forces and the pressures within and outside our profession push us, reluctantly perhaps, but inexorably, toward professionalization.
small claims matters may be the only contact "ordinary" citizens have with the "justice system," a system that depends upon an educated and sympathetic citizenry to support and fund;
considerable harm could flow both to individuals and to the institution of justice itself as the Courts divert greater numbers of people away from formal and public court proceedings into private, informal, unsupervised proceedings with people who are spottily trained not only in conflict resolution, but also in the alternative to ADR -- one's day in Court.
the justice system which not only sanctions but promotes court-annexed mediation is lending its imprimatur to an alternative that can and too often is abusive, coercive, biased, secretive and unpatrolled
the lack of "best practices" diminishes the respect people have for the mediation process, both the lawyers who are "referred" to it by judges ("ordered" by any other name) and those lawyers' clients who do not understand why they are being shuttled away from their day in court into a conference room with mediators who may or may not be qualified to render passing-grade services, let alone excellent ones.
educational, training, and supervision requirements have not stifled innovation in that other secretive and unsupervised professional activity -- psychotherapy. The potential for abuse in that relationship is even higher than the potential for harm caused by barely schooled and never supervised mediators. Nevertheless, the potential for abuse to litigants, particularly unrepersented litigants in small claims and civil harassment actions is high.
one day, someone will be murdered by an enraged spouse, family member or next door neighbor who mediated their civil harassment case to an agreement rather than a restraining order. I hate to say this but think it inevitable. It will not be mediation's fault. But mediation will pay if it has not established standards for court-annexed mediators, standards that include mentoring and supervision in the early days of one's mediation practice in court programs.
Those are my thoughts. Diane's post contains many more, together with some great links to the thoughts of others on both sides of the debate. Don't miss it.
Some people are so dangerous and some situations so volatile that restraining orders are of little use. Consider this tragic tale of the courthouse shooting of a woman who had "secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being 'within 100 yeards of any firearm' while in the presence of [his ex-wife] Eileen and [the couple's] children." Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112. Here's the appellate court's summary of the facts:
Eileen and Harry separated in October 1993. Harry failed to comply with orders of the family court relating to spousal and child support, and Eileen sought redress in the family court on various occasions. Harry became verbally abusive toward Eileen. On at least three occasions prior to September 1, 1995, Eileen informed the bailiff in one department of the family court that she feared Harry and believed he might attack or kill her in the courthouse.
On at least one prior occasion, the bailiff searched Harry for weapons before permitting him to enter the courtroom. Eileen also previously had provided the bailiff and a judge in the family court with copies of letters and telephone messages in which Harry threatened to kill her. Eileen had secured restraining orders that prohibited Harry from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited Harry from being “within 100 yards of any firearm” while in the presence of Eileen and the children.
On September 1, 1995, Eileen appeared in department 27, one of the courtrooms hearing family law matters at the Central Civil Courthouse. Eileen and Harry were directed to proceed downstairs to department 1A. As she reached the second floor of the building, Harry retrieved a loaded .38-caliber revolver that had been concealed in his clothing and shot Eileen in the chest at point-blank range. Their daughter Lisa witnessed the shooting. Eileen died soon thereafter.
Power Cannot Protect Us
In my last post I posed the question whether a Civil Harassment Restraining Order is "better" for people who are living in fear of another than a mediated agreement between those people. From the story of Henry Zelig and his family above, you can guess my own answer. A restraining Order cannot protect us. If we are not dealing with a crazed maniac (in which case we need to disengage and perhaps even hide rather than summoning our stalker to court) the parties' voluntary resolution of their dispute offers much greater protection for the future.
Power contests . . . produce winners and losers, destroy important relationships, and generate a great deal of 'collateral damage.' Power also encourages corruption in those who use it, and blind obedience, resistance, and revolt in those it is used against. Resort to power-based solutions, therefore stimulates future disputes and makes it nearly impossible to change without experiencing major conflicts.
Cloke thinks as little of rights-based solutions to conflicts as he does power-based solutions. He writes,
[R]ights-based processes rest on bureaucracy, operate by control, and resolut in compliance . . . Rights-based approaches encourage alienation, resulting in personal cynicism, apathy and uncaring. Neither prevents or transcends chronic conflicts, or seeks to dismantle them at their systemic source.
(you'll notice in the Gates-Crowley dust-up that "personal cynicism, apathy and uncaring" are the best the population is doing following President Obama's appeal to a rights-based analysis of the situation, i.e., that the matter reflects racism /* more than it does temperamental outbursts)
The better way? Cloke suggests that both power- and rights-based means of dispute resolution have given way to a better way of resolving conflicts
based on interests, using informal problem-solving, facilitation, open dialogue, collaborative negotiation, and mediation. Interests reflect not merely what people want, but the reasons whythey want it. Interest-based processes therefore do not require winners and losers, are able to prevent, reoslve, transform, and transcend conflicts at their chronic source, support collaborative, democratic relationships, and encourage systemic change.
You may be saying not only that that is quite an order, but it is a solution only for dewy-eyed optimists who do not understand the "real world." I can only tell you what I told my civil harassment parties as they made the decision whether to participate in mediation or not.
"Everyone," I said, "tells me that the other side will never see reason, that the matter cannot be settled, that the parties need a ruling from a Judge and an Order they can enforce against another. And yet every time I mediate a dispute like this -- and I mean everytime -- the parties are able to settle their differences amongst themselves by way of agreement and the result is a far more satisfactory and durable solution for everyone."
But you don't need to take my word for it. Download the Middle and High-School Peer Mediation materials and use the process yourself. You'll be surprised at the results and happy you did.
*/ I do not mean to diminish the role race played in this dispute, simply that a rights-based race-conscious response by the President did nothing to resolve it. As Cloke wisely notes in his Introduction:
[E]very conflict takes place not only between individuals, but in a context, culture, and environment, surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time on history; on a stage; against a backdrop; in a setting or milieu.
Because our history of slavery and racism is so shameful a part of our history, we too often either suppress its role in conflict entirely or raise it up as the primary focus of our attention. Neither is "correct." Hence the circles we continue to run in whenever race is part of the context in which conflict erupts.
It's merely coincidental that I volunteered to mediate civil harassment petitions for the first time during the same week as Gatesgate. (for the legal eagles, here's the law on disorderly conduct in one's own home vs. on one's own porch form today's L.A. Times). Much ink will be spilled on Gatesgate, most of it unproductive posturing by people with an interest in having their version of "the truth" declared "right." For anyone other than President Obama who is making the effort to turn high dudgeon into a "teaching moment" of accountability, understanding, amends, forgiveness and reconciliation, I provide my own story of relationships gone awry, the mediation of a dispute arising from a breakdown in civility, and the way in which we teach Middle and High Schoolers to resolve problems that we adults still can't seem to get right.
In both cases, the parties told me that the other side was -- essentially -- the spawn of Satan or, more charitably, simply insane, certainly irrational, maybe delusional, and definitely hateful It was kind of me to volunteer my services, they told me, but there was no chance the "other side" would respond truthfully or rationally. There was, they said, "no hope." I, of course, am in the hope business. It says it right there on pamphlet provided to Middle School Peer Mediators.
I acknowledged the parties' understandable feelings of hopelessness but reassured them that they didn't need to believe in the process for it to work. I held enough hope to get the thing going and would make sure -- to the best of my ability -- that no one was unsafe. If they ever felt unsafe in the mediation room, they could just raise their hand or say "I need a break" and I'd immediately get up and take them out of the room.
The first case (names changed and story altered in inessential details to protect confidentiality) is not strictly a "family" court matter. But it was a family matter nonetheless. A typical Los Angeles family - multi-cultural, multi-racial and unsolemnized. There's a great aunt ("Pearl"), an ex-boyfriend ("Dan") who is two-year old "Robbie's" father and a mother ("Erica"). Erica's sister, "Jean" is present but Robbie is at daycare.
Ask what happened.
Ask how he or she feels about what happened.
Summarize each statement.
Give each party approximately equal time to talk.
We dig in. Robbie was injured on the playground and the school called Dan, whose week it was to be with Robbie. Dan called his Aunt Pearl who called Erica. Erica arrived at the ER as the doctor was putting Robbie's final stitches in. Erica demanded that Robbie come home with her. She and Dan fought. Dan picked Robbie up into his arms and left the ER with him. Erica, hysterical, called Pearl. Pearl called Dan who asked her to come over.
So it came to pass that on a sunny Southern California morning in West Los Angeles that Erica pulled up to the curb, jumped out of her car and headed toward Dan's front door. Pearl came out of the house as soon as she saw Erica arrive and was standing on the front porch by the time Erica opened her car door and headed toward Dan's house. Angry words were exchanged. According to Erica, Pearl struck her in the face, knocking off her sunglasses. According to Pearl, she simply pushed Erica's finger away. The police were called and Erica's civil harassment petition followed.
Use active listening skills (repeating, summarizing, clarifying).
Focus on issues important to both parties.
Ask if any issues have been missed.
Identify areas of miscommunication or wrong assumptions
I'd elicited "the story" and asked whether there might not have been miscommunications. No one was ready to acknowledge that his or her version of "the facts" might be their own subjective experience rather than objective reality. The parties are in a courthouse so it's not surprising that they want someone to decide who is telling the truth. But the "truth" I'm hearing doesn't have anything to do with who did what to whom and in what order. The truth I'm hearing has more to do with family.
"This is what I'm hearing," I say. "I'm hearing that Pearl and Erica are not only related by blood, but by mutual affection. This is the first time Pearl and Erica have had a serious fight of any kind, let alone a physical one."
"Am I right?"
Pearl and Erica nod their heads in agreement.
"And Erica," I say, "you want an order from the Court that will prevent Pearl from coming near your home or calling you on the phone or contacting you in any way for three full years?"
Erica is crying and nodding "yes." She tells me she is afraid of Pearl now. Pearl never wants to see Erica again, she says, but Erica still wants that Court Order.
Erica and Pearl are adamant and unyielding. I feel stuck. Then I take a deep breath and plunge in.
"There's someone missing here," I say, as I draw an empty chair up to the conference room table. "Who's missing?"
"Who's the person most likely to be hurt by this incident," I ask, "and the person mostly likely to be hurt by this Order?"
"Robbie," mumbles Erica as Pearl mists up nodding in agreement.
Address issues one at a time.
Ask what each party would like the other to do differently in the future.
Ask what each party can do to resolve the dispute.
Ask what can be done differently if the problem occurs again.
It would be nice if life were a script. Boring, but predictable. We don't have much of a choice, however, and at this moment the court clerk comes in on a mission from the Judge. He has a crowded afternoon calendar. If the parties haven't settled the matter yet, he needs them to come back to his courtroom right now. I quickly summarize where we're at -- Pearl is willing to enter into a written agreement that she will not contact Erica so long as Erica agrees not to contact her. We haven't agreed on a time period even though I'd suggested six months with a follow-up pro bono session with me to see how life had been thus sundered. No deal. I ask Pearl to head down to the courtroom, telling her that Erica and I will follow.
Just as Pearl leaves, Erica turns to me and asks what her chances of "winning" are. I tell her I'm no expert and that every judge is different. I tell her what the statute says she must prove. I tell her that some judges issue mutual restraining orders even when the other party hasn't asked for one. I tell her that anyone who violates the order can be arrested. I tell her how powerful it is; how profoundly it could affect someone's life. I tell her that it could lock the entire family into a separation painful to Robbie based upon one incident on one day in the life of her family.
She says, "ok, I'll do the agreement; I won't ask for the order" and we head back to the courtroom to hammer out the details.
Write specific agreements for each issue outlining who will do what,
where, how and by what date.
Balance the agreement so both parties take responsibility for the solution
Be sure the agreement is realistic for each party.
Be sure the agreement really addresses the issues.
Ask if any issues have been missed.
Ask parties to prevent rumors by telling people the dispute is resolved.
Thank the parties and congratulate them for their hard work.
It nearly noon and I have other parties waiting for me to mediate their civil harassment petition. Because I am conducting this mediation as part of a mentoring project, I have an assistant mediator who takes over on the agreement and closing for me, which he does, after which the Court convenes and congratulates the parties for working out a solution themselves.
This is a very small accomplishment in the long and terrible history of dispute resolution -- beginning with blood feuds and still threatening to end with nuclear wars. Have we really accomplished anything with this family? Why not simply allow the Court to grant or deny the Petition and send the parties on their way?
I have a far more dramatic story to illustrate why I believe that this process -- resolving disputes by agreement rather than by decision and order -- is preferable. That story, next.
It's always a better outcome when you can resolve a situation by using as little of your authority as possible. And a lot of that is how you perceive the other side. . . . And whether you're willing to explain what you're doing. Instead of just issuing an order.
The best advice I've read from anyone since the dust-up began.
**/ I also volunteer my services as a peer mediation coach for the Western Justice Center in Pasadena and can tell you that the process is no different for Middle and High School students than it is for adults. In fact, these young people often put the rest of us to shame. Use their form the next time you need to help someone resolve a dispute and see what happens! (form here)
Breaking a longstanding tradition of ignoring racial conflict, Obama has officially invited Cambridge police officer James Crowley and Harvard professor Henry Louis "Skip" Gates, Jr., to the White House for a beer and a bit of conversation about the incident. Obama's hope is that the debacle can morph into a "teachable moment" for everyone, and be brought to a conclusion that will allow the nation to focus once again on providing health care to all its citizens. Latest news has it that Skip has accepted the offer. We're excited to see the transcript of that chat, if it's released.
This is just what Harvard law professor Robert Mnookin, the chair of Harvard’s Program on Negotiation, recommended.
Pride seems like an insurmountable obstacle sometimes. On one hand, you have a black man who has withstood taunts from other blacks for working with The Man and achieving success in mainstream society. On the other hand, you’ve got an officer who is sworn to uphold civil society, dealing with, in his mind, someone who is being decidedly uncivil. How do you get both sides to admit they maybe went too far?
I would ask each is if they would find it valuable to have an opportunity to really explain to the other person their perspective, to really make it clear what their perspective is, and as part of that, would they be willing to take in the perspective of the other. . . I certainly think there is hope that professor Gates and this officer could sit down together and have a constructive conversation where they each came to understand better the perspective of the other — and themselves.
Nearly every condominium complex harbors an outlaw - the man, woman, couple or family who refuses to follow the rules, such as the college kids who blast the woofers off their stereo system at 3 a.m., the elderly woman who doesn't clean up after her dog or the raucous family that plays "Marco Polo" in the community pool after midnight.
Offended and outraged, other homeowners make demands on their volunteer board, which contacts the (often unresponsive) management company. The homeowners association board does its best. It issues warnings to procure compliance to no avail. Eventually, someone reads the covenants, conditions and restrictions. They learn that the board has enforceable legal duties and that the homeowners have actionable legal rights.
Many of these disputes make their way to the Los Angeles County Bar Association's Dispute Resolution Center in West Hollywood. And some of them make their way to me.
Welcome to community mediation - the non-zero-sum, value-based, rights-seeking, joint session transformative dispute resolution process. We're well trained and we're free.
It's good to step into a small claims or limited jurisdiction court from time to time to see how ordinary people's disputes are resolved, usually without counsel.
Yesterday, as I sat in the small claims department of a local branch court, I wondered why the one-hour court trial I was observing hadn't been resolved in mediation. Both parties to the fender-bender resulting only in property damage admitted they "hadn't been looking" when one pulled out of a parking spot and the other backed into him.
The damages didn't require an adversarial process either. There were quotations for repair on both sides as well as estimates of the vehicle's fair market value. It was plain that the plaintiff had used comps that weren't truly comparable -- luxury cars vs. his own stripped down model.
I had to leave before the Court rendered its judgment but I was pretty sure the Plaintiff wasn't going to understand why he'd lost (the result I assumed). He spoke the language poorly and had a weak grasp of the proceedings going on about him. It is on occasions like this that I believe mediation is better able to deliver justice than the court is if you define justice as a fair result arising from a fair procedure that all parties understand and are capable of a meaningfully engagement with.
Before the judgment was rendered, the clerk whispered in the Judges ear that the "mediator is here; with a trainee and a law student." He took a break to tell the (unrepresented) civil harassment parties that "there is a mediator in Court willing to help you resolve your dispute without charge." I introduced myself briefly, along with my "assistants" as the Judge told the assembled parties that it's difficult to obtain an injunction (burden of proof: clear and convincing evidence) but a very bad result for any defendant against whom one is granted. The Judge did a good job, I thought, in quickly instructing the parties on the "up" and "down" sides of using the adversarial process instead of mediation, assuring them all that they could return to him for a judgment if the matters didn't settle.
These are people, not lawyers, and people's disputes rarely fail to settle when they're able to tell their story in an atmosphere of hope and safety. When their "opponent" listens to them respectfully for the first time ever. When they don't feel as if the police officer or court official or social service agency is listening with only half their attention. They speak quickly to me outside the courthouse door when trying to decide whether to use my free services or have the day in court they've already paid for -- filing fees and costs of service - never a small expense for the people who find themselves here, hopeful and afraid. They thrust their documentary evidence at me in the hallway. If they don't get it all in right now I may not listen to them later. They are strident or trembling; self-righteous or humble, but none of them truly believe anyone is going to actually hear and understand their predicament.
I suggest they try to resolve the matter by way of agreement. I assure them that I will not permit them to feel unsafe; telling them they can ask for a break the very moment they begin to feel uncomfortable. I will follow them out of the conference room and we will talk about what is troubling them right away. No, now is not the time to tell their entire story but that time is near. All we have to do is take the elevator up to the next floor where the ADR office and its single meeting room are located. I assure them again that they can come back to the Court later that day if I cannot help them resolve their dispute themselves. They are all of the firm belief that they will be back in court. The other side is "lying," ruthless, malicious, and will will attempt to manipulate me, the mediator.
Mediation "will never work," they say to a person. And yet, the woman in the black suit is beginning to seem less threatening, more approachable, more hopeful, than the Judge in the polyester robe.
O.K., they agree. They will give it a shot. I'm so earnest, I sometimes feel that they do it for me as much as for themselves. That's OK, they have no reason to hope yet. It is enough that I do. I am undeviating in my faith that when I call upon people's higher angels, they will respond. I take pride in every individual willing to sit at a table across from their adversary and have a conversation. Lawyers often won't do it. Representatives of Fortune 500 corporations demur. Nations refuse the offer. Yet these people, nearly defenseless, are brave enough to sit with the enemy and will, I know, also be wise enough, honest enough, and respectful enough, to take their destiny into their own hands and make a better decision in conversation with one another than any third-party "decider" possibly could.
I reviewed with some dismay the July 12, 2009, post titled Mediators' Proposals: the Good, the Bad and the Ugly, which seemed to endorse counsel who deceive the mediator to push the negotiations to a mediator’s proposal./* I primarily litigate, but I devote a small percentage of my practice to serving as a mediator.
A mediator’s proposal can be a very effective tool for mediators and the parties to promote settlement when the negotiations have honestly and appropriately reached an impasse. The chance of the proposal generating a settlement, however, will increase greatly if the parties and attorneys respect the mediator and his or her opinion.
If the parties and attorneys respect the mediator, then they will respect the proposal, making it more likely that they will accept the proposal. Without respect, there is nothing more than a gambler’s hope that the proposal will be in an acceptable range. Further, if the lack of respect is mutual, then there is a risk that the mediator will subconsciously tilt the proposal in favor of the other side, which certainly will not promote settlement.
Every mediation has some elements of a game, but while the gamesmanship can involve concealment and even some sleight of hand, it should not devolve into deception. One example that has worked well where there is complete trust and respect between the mediator and at least one side is for that side to divulge the final offer near the outset of the session with the understanding that the mediator will have some latitude to dole out the total authority in bits and pieces with the hope of settling at or near that final number.
This is deceptive because the mediator is telling the other side that obtaining each “concession” is a hard fought battle, but it eliminates the risk of moving too quickly to the end game against an opponent who does not care what the opening number might be, but only wants to halve it (or double it) before the end of the day. This is deceptive because each private session with the side who divulged his or her final number creates an opportunity to discuss future vacations and how the kids are doing. If, however, the goal is to reach a settlement that works for all concerned and gives all parties a sense of accomplishment, then it is a fine tactic that promotes efficient negotiations, likely avoids altogether the need for a mediator’s proposal, and minimizes the fees of the attorneys and the mediator.
Candor and respect towards a mediator has an additional benefit that may not be of advantage to the immediate clients, but will promote productive future mediations on other matters. If I can tell my client that a particular mediator is good, that I respect that person, and will seriously consider everything that that person says, then the client is more likely to listen to what could be bad news about the case. This level of respect is rarely earned in the first session with a new mediator, but only after several mediations. Without candor and respect, the attorneys and parties just want to “win” without realizing that the cost of “victory” may be dearer than the settlement obtained through a positive and respectful mediation.
* Editor's comment: I did not mean to endorse duplicity on the part of counsel or the gaming of a mediator for the purpose of obtaining a favorable mediation proposal. I only meant to emphasize the fact that many attorneys can and do "game" the system, including as much manipulation of the mediator herself in the process.
-- Gregory Nerland
Akawie & LaPietra
1981 N. Broadway, #320
Walnut Creek, CA 94596
savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:
In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or
In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or
In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.
A reluctant plaintiff will make a large jump if the money is really “on the table.” Defendants will come up with money they otherwise deny having, if it means that the case is really over. It also eliminates reactive devaluation.
For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier. "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you." With that admonition ringing in the ears of every litigator, the need for mediators is obvious. Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator.
I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them. I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y." When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:
how invested each side was in walking away with a settlement that day
how firm each side was in their assertion that they would not go below or above a certain number
whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*
The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel.
I made my proposal and both sides accepted. When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement: "I was prepared to take less; that's a great deal. Thanks so much."
Everyone Lies to the Mediator
That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator. You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.
Still, I took a lesson from the attorney's merriment. I realized immediately that he was not the only, nor the first, attorney to manipulate me. He was simply the only one to let me know it. I don't like being manipulated. But that's what litigators are trained to do. We call it "persuasion." Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.
So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.
"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"
The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point. I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.
"I didn't hire you to have a third party make my decision for me," said counsel. "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)
I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."
Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart. The parties don't hire me to make a decision for them. They're much happier when they get to make the decision themselves. Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work. That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.
I decided to stop making mediators' proposals more than two years ago. In all that time, however, I've never refused to make one. Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.
I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.
* I say this with the following caveat: I would never attempt to influence clients to do something other than what their attorneys advise. From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests. I only play "bad cop" with the attorney's advice and consent. My job is to get the settlement concluded making the attorneys look good, not bad.
David Stern's latest bulletin on insurance and mediation is now available to download on the link above. It aims to set out how mediation is perceived, what drivers there are for change and how these drivers are likely to impact the use of mediation as a dispute resolution technique for London Market disputes in the future.
Though I mediated several big ticket London coverage cases in that fair city while defending environmental insurance claims cases (primarily against the petroleum companies my husband was then representing) the power of most settlement discussions was in the hands of the lead negotiator for Equitas - a master deal-maker who left most mediators in the dust.
I believe that the quality of mediation practice has greatly improved since that time (late 1990's, early 21st century) primarily as a result of attorneys entering the practice (with all due deference to my retired Judge mediator friends). I'm happy to see London giving mediation a higher profile.
Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets: Los Angeles.
Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.
The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades. The joint session was designed to give the parties with the dispute - the clients - the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem: the sinkhole of litigation.
The news for mediation advocates (litigators and trial attorneys) is that avoiding joint sessions may deprive the parties and counsel of the "small talk" necessary to put the parties into a collaborative, even generous mood.
A voluntary foreclosure mediation program has worked so well in the eyes of legislators that the General Assembly pushed through a measure to make the program mandatory starting July 1.
Nearly 60 percent of those participating in the voluntary program have remained in their homes, and supporters contend that even more distressed mortgage holders will benefit from being forced into mediation. To date, only about 34 percent of those eligible for mediation have made use of the voluntary program, according to the Judicial Branch.
I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.
One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.
This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators. I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys. Here's the story.
My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."
Your opponents just asked me to make a mediator's proposal of $X.Y million.
Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown. In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).
Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior. Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here? How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?
I have "caught" mediators in deception during my practice (and have not been quiet about my experience). In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator. If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation. If the mediator is dishonest, will be found out.
If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.
I have to say that I agree with magazine mogul Tina Brown that we're in a "gig economy" not a job economy. What does that mean? It means doing an inventory of your dreams right next to a realistic assessment of your skills, along with a time line for getting your own business up and running, with or without investors, remembering that in a "gig economy" barter is a perfectly acceptable alternative to cash and in the age of the internet (Networking Wisdom in Mentoring Circles) hundreds of marketing tools that can reach millions of people globally and thousands of people locally, are right beneath your fingers on the keyboard connected to the computer that brings you the most exciting set of opportunities since we decided to send men to the moon -- social networking (now there's a proper run-on sentence, the reward for which is buying myself a new copy of Elements of Style which every job-seeker and new entrepreneur should do post-haste since written communication is the key to successful online business development).
That said, for those who NEED A JOB RIGHT NOW to pay off their law school loans (remembering that dischargable or not, we no longer have debtors' prisons), here's today's Law.com advice:
The book gives a 12-step plan for landing a new job: 1. finding passion and creating vision; 2. creating a brand; 3. creating a value proposition; 4. creating stories; 5. developing a marketing plan; 6. getting a message out; 7. creating a marketing document; 8. meeting the friend's friend; 9. power résumé; 10. preparing for an interview; 11. negotiating terms; 12. landing the job; and the next step.
The book emphasizes the importance of keeping up contacts after landing in a new job -- knowing that another may search may be ahead. But it suggests maintaining contacts by looking for ways to help other people with a "pay-it-forward" approach. "We all need help at some point," the book says. "The concept is that you are thankful for those who helped you in the past."
Villwock told the group that in his experience, the most successful CEOs and other professionals are those who are most passionate about their work. "When they stop having fun, that's when they stop and go on to the next job," he said.
He also advised the group that attitude and personal skills are as important as professional credentials. From observing executives, he said, "half their success has nothing to do with performance on the job. It has everything to do with ability to sell themselves and build trusted relationships."
If you substitute business plan for power résumé and starting the business for landing the job, you've got a perfectly great recipe for engaging the gig economy eagerly awaiting your contribution. Listen up! You didn't get the highest PSAT and SAT scores, graduate cum, magna or summa, ace the LSAT, study your $#@% off, learn lawyering skills, conquer your fear and pass the bar exam to be hat in hand looking to be someone's apprentice galley slave.
Think about it and join the rest of the gig economy.
We're looking forward to your unique and valuable contributions to the new economy right now!
The writing on the inside of the secret entrepreneurial decoder ring? MONETIZE EVERYTHING!
Let us take a blank sheet of paper and imagine that we are trying to create a system which would provide a satisfactory means of resolving civil disputes, bearing in mind, without being over dramatic, that in the end, it becomes almost inevitable that some civil disputes will end up in criminal activity. I do not think I am exaggerating.
A few years ago I was taught a lesson by a very intelligent young woman in one of our County Courts. We were talking of the cost – the exorbitant cost as it was then - of taking proceedings for very small sums of money. She explained to me that the cost of just starting the proceedings would represent her children’s shoes – she thought this a disproportionate cost. She knew areas of the City where her husband could go and find someone who would throw a few bricks through a window for £50 – no doubt she was right. And, perhaps, that would be more effective, she suggested than a judgment and getting back the compensation. A little self-help could end up with a brick being used against an individual and a few bricks being thrown back in return.
In short, a civilised community has to provide a system which means that those in dispute can refer to an independent tribunal for a decision. It is a further requirement that the system should actually exist and be capable of being used. If court fees are disproportionate or if legal fees are disproportionate the system is not open to those who cannot afford its processes.
My experience in practice at the bar was that some of my clients wanted their disputes sorted out. They had tried to sort them out before they got to the stage of seeing a solicitor and going to counsel. Others of my clients, or should I say, it was always my opponent’s clients who were unreasonable, didn’t want to sort the dispute out at all. There were all sorts of reasons. One is that very human characteristic sometimes but not always an attribute, the indomitable bloody mindedness of the bull dog.
So that on your sheet of paper the system which we are creating has to cater for both those who wish to settle and those who do not. If both sides want to sort out their dispute, and they have tried and failed, being sensible people, their next step would not be to come to lawyers, but to go and ask someone they trust to try and sort out their dispute, to see where there are points of disagreement and points of agreement. Let’s give it a name. Why not call it “mediation”? A successful mediation is a wonderful outcome. But with the best will in the world, it may not always happen. So you have to have a formal system.
You also have to have a formal system when one side or other to the dispute simply has no intention of sorting it out save in court and at the end of a protracted and expensive court proceeding. That is more troublesome. That may be the party with pots of money trying to squeeze the party with modest means away from the court process. That may mean that the party with real merit in his or her case is deprived of the proceeds of litigation for many years to the advantage of the intransigent party. It may be that the intransigent party is entirely justified and believes that there is no form of mediation which would be acceptable either to it or indeed in the end to the other side.
Now time and time again, in practice as a barrister and now as a judge, I have been perfectly well aware that if only the parties had come together at an early stage, long before they saw their counsel, long before they got to the door of the court, they could have resolved their dispute at a fraction of the cost and without the emotional expenditure and commitment of time and energy required by the litigation. One of the ways I used to try to persuade clients to settle was to remind them of a Chinese curse – “may you be involved in a litigation in which you are in the right.”
One vivid memory is a boundary dispute, or rather a dispute over a garden. My opponent and I turned up at the County Court armed with an abundance of authorities because we had to address limitation periods, laches, injunctive relief, indeed just about every facet of civil justice. In the end we negotiated a settlement in which he and I, not the judge, went to the land and armed not with books but with hammers and stakes literally pegged out the property into equal halves. The case was settled. In truth my opponent and I had acted as mediators. How much better for everyone if the mediation had happened much earlier.
Can we just take a long term view? Every few years, or about every ten years, there is a great hullabaloo about the cost of civil litigation. Arbitration, after all, is a system of avoiding the court process. Do you remember when employment tribunals began? These were to be informal meetings at which the opposing parties would put their cases to a tribunal, almost a form of palm tree justice.
Consider now how much more complicated and expensive the processes have become.
I do urge the Council to recognise this danger. The mediation process, could, unless danger is recognised and addressed, particularly if it is part of the court process, may eventually, and quite unintentionally, and by unforeseen accretion become increasingly formalised and procedural. It really must not eventually become just one more part of the expensive process that all of us are trying to avoid.
I'm asked about Restorative Justice from time to time. It's all about accountability, amends and reconciliation. Powerful stuff. Take a look. Here's my own article on Restorative Justice practices, which I compare to recovery in a 12-step community.
I would not ordinarily post a power point presentation that is someone else's marketing vehicle. Nor would I generally post a power point that is meant solely for the benefit of one side of any dispute (here, plaintiffs' personal injury attorneys). I read though the entire lengthy presentation, however, and thought it contained some good tips over a broad range of issues that could well be useful to attorneys, clients and mediators in settling personal injury litigation involving the use of structured financial products. So with all disclaimers considered given (not my opinions; don't vouch for accuracy, etc.) I uploaded the below presentation for anyone who might find it a useful jumping off point in this complex arena (i.e., it invovles arithmetic if not actually mathematics!)
found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later. By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.
PORTSMOUTH — After a session of marital mediation in the district court's family division, Elizabeth Loveday threatened to kill her estranged mate, then hit and bit the mediator, police allege.
Loveday, of 27 Perkins Ave., Hampton, is charged with two counts of simple assault, a criminal threatening charge and a count of violating a protective order.
Police prosecutor Karl Durand said Loveday was exiting a courthouse meeting room when she shouted to her ex, "I will kill you." Shortly after, in a courthouse hallway, Loveday swung at, struck, then bit the mediator on her forearm, police allege.
Three of the mediation world’s leading bloggers, Diane Levine, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think “grilled”) Mediate.com CEO, Jim Melamed, on the new Mediate.com Certification Program.
Here is the interview:
Question: How will Mediate.com's certification program work?
The Mediate.com certification program allows interested mediators to have their training, experience and professional information reviewed to see if they meet the stated Mediate.com certification standards. A critical component of the Mediate.com program is that we require all this submitted information to be transparently provided to the public. So, we don’t just review the qualifying information, we make everything we review publicly available. Needless to say, confidential information is neither requested nor disclosed.
Question: What are the benefits for the public? For the profession?
The primary benefits to the public include motivating mediators to provide comprehensive information conveniently online; having this information systematically presented to the largest possible audience; and Mediate.com offering the value-add service of taking a close look at the mediator’s provided information to ensure that it is comprehensive, congruent and satisfies the stated certification standards. Presumably, the Mediate.com Certification Program will be one of a number of factors helping people to make mediator selection decisions. For good reason, this program will elevate the confidence of many mediator selection decisions.
Still, let’s be clear, one does not need to be a Mediate.com Certified Mediator to mediate. For example, we have over 3,000 mediators in our directory and only about 500 are seemingly qualified or even apply for Mediate.com Certification. We believe in all cases that the right mediator for a particular situation is the one that participants want.
The benefits to the profession are: making it abundantly clear what it is that distinguishes mediation and insisting on these qualities; elevating standards for mediator information disclosure; providing a path for mediator development not based upon profession of origin nor advanced degrees; and, in the Internet age, satisfying consumer expectations in terms of transparency and disclosure. Mediate.com seeks to respond to these elevated information expectations.
Question: On what basis does the proposed certification rest?
Perhaps the greatest rationale for Mediate.com acting is that we believe acting is better than not acting.
For decades, the mediation field has, as a matter of policy, committed itself to “skills based assessment” and, later, to a “paper and pencil test,” none of which has yet been effectively developed or implemented. This is in spite of nearly two decades and millions of dollars of grant money being applied to these issues. The cost of this development and deployment of a true skills-based system would be enormous, if possible at all (we really do not know what makes an effective mediator in each practice area); so costly by my estimate that it is simply not going to happen, at least not for “all mediation,” over the next years.
The world of mediation is also breaking into niche mediation industries, each with its own culture and practice expectations. This is both good and challenging from a quality assurance perspective. For example, the behavior and skills that will be effective for a commercial mediator in a law firm conference room may be very different from the behavior and skills that will be effective in resolving a gang dispute, custody battle or workplace departmental battle. Still, we also simultaneously think that there is something to say for a system that brings all mediation and mediators together, if only to protect the good name of “mediation.”
We are thus emphasizing these qualities to the consuming public:
·Participation in mediation negotiations is voluntary
·Participants have complete decision-making power
·The mediator is to be impartial between the participants
·Mediation communications are confidential unless understood otherwise
·Mediation allows for optimized solutions
·Mediation does not preclude any other process
·If participants do not reach agreement in mediation, their legal rights should not be prejudiced.
Now, to some, all of this is “obvious.” And we say, “of course.” But I will suggest that many state and federal agencies and court systems do not necessarily see things this way. They are far more interested in disputes being resolved and dockets cleared than in protecting the mediation process or in empowering participants to be at their best.
The world has also changed. Importantly, the Internet is now available as a source for the immediate delivery of unlimited information and comprehensive disclosure. In the context of empowering consumers and participants to “self-determine,” we think it is worthwhile to reward (with our mediation certification) those mediators that demonstrate substantial training, experience, clear commitment, and comprehensive information disclosure and transparency.
If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).
Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer).
Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).
Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is. Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.
Let's not wait for the economy to improve. Let's start improving it TODAY. We are the change we want to see in the world.
wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation. As customers become slower and slower at paying added pressure is created for their suppliers and relationships become strained.
Because the "approach taken by those involved and their attitude in dealing with the conflict will have a significant impact on the outcome and the costs involved in finding a solution," Justin provides the following easy to implement solutions:
1 Avoid macho posturing – In an attempt to hide the weakness of their position some people are all bluff and bluster in conflict situations. . . . . (more)
2 De-personalise problems – My experience of disputes is that often things can happen due to personal issues between the individuals. It can be difficult to take the personalities out of a matter but believe me there are clear benefits. . . . (more)
3 Focus on your own emotions – In many work environments there are unwritten rules that emotions are not to be expressed. Is this really wise? . . . (more)
4 Listen – Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener. . . . (more)
5 Analyse the Conflict – Research on problem solving indicates that the effectiveness of solutions increases significantly once the real problem is identified. . . . (more)
Justin Patten handles conflict for a living and whilst as a litigation solicitor he is familiar with the combat zone of the court room he much prefers to work with clients to achieve mediated solutions through negotiation and agreement. Contact Justin on 0844 800 3249 or email Justin here.
A White Paper with advice on How to save money, maintain business relationships and avoid negative publicity by embracing the power of mediation to resolve business and employee disputes. Download the PDF here.
You can subscribe to Justin's invaluable eZine here.
I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication. I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)
My advice? Use the tried and true tit-for-tat strategy: retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line. The advice I gave on twitter (@vpynchon) this morning was simple and pointed: tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.
Below, my Daily Journal article on the Dangers of Using Email During Litigation.
This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.
My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble. (See Vanity Fair's must-read oral history of the internet here.)
There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline. More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.
Did I say it's 3 a.m.? The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all. The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing. I'm tired. I'm hungry. I'm lonely. And I'm angry.
Worst of all, I'm composing an email to my associate about my considerable disappointment in his recent performance. There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no." Then I push "send."
Email Makes Settlement More Difficult
More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time. In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made). Increasingly, by far the vast percentage of their communications have taken place via email.
And that's a problem.
There's no question that litigation escalates whatever conflict existed when our client first walks in our door. We don't, after all, make requests. We issue demands. We don't seek concessions. We insist upon them. We don't make inquiries. We require responses. And we're not such great listeners. Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.
Are these bad things? Not necessarily. So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.
The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.
"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.
Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not
physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /* [T]the inability to carefully time actions and reactions . . . makes communication less precise.
E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social."
Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day. "E-mails," writes Friedman,
are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.
As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer. Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."
E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."
The Precise Difficulties Caused by E-Mail Communications?
Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.
Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.
Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).
Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.
As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**
Back in Los Angeles the Following Day
You knew this story was not going to have a happy ending. What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things. And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.
This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email. And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.
The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.
*/ "Grounding" is the process
by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."
** / There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time.
For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.
There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.
One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished. Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.
So what do we, mediators and interest-based negotiators, do when confronted with tyranny? Cloke's partial response (see full article here) is as follows:
Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:
To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.
When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”
True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.
For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.
In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.
At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.
Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.
By the way, tomorrow is Ken's birthday. HAPPY BIRTHDAY KEN!!!
Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets - Los Angeles California.
Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations. The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades. The joint session was supposed to give the parties with the dispute -- the clients -- the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem - the sink hole of litigation.
The news for separate caucus mediators is that avoiding joint sessions may deprive us of the "small talk" necessary to put the parties into a collaborative, even generous mood.
Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn. Although Dickens nailed the personality type on the head when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money.
The confirming research? Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn. Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities
waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work.
The young people whose attention was focused on money also
chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].
These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them. (see Thinking About Money from Neuromarketing here).
The Benefit of Small Talk and Joint Sessions
What benefits can litigants draw from these research findings? The same benefits most successful negotiators already derive from small talk -- breaking impasse and closing the deal.
In the not so distant past when I was primarily mediating pro bono cases for the Superior Court, I always commenced my mediations in joint session. I did not ask for those polarizing speeches about the merits of each side's case however. What I asked both the parties and the lawyers to do was very simple.
"Introduce yourself," I said, "as if you were at a cocktail party. Say something interesting about yourself, something pleasing or, at least, something superficially revealing, such as your job, a recent vacation you've taken, and the like."
Expect the Unexpected
In one small commercial dispute early in my pro bono career, that initial "party chatter" resolved the case in short order. The Plaintiff businessman was the first to introduce himself as an importer of household goods from Yugoslavia. After five or six other parties had gone through their introductions, it came time for defense counsel to say a few words. He opened his arms and broke into a grin as he began to speak to Plaintiff in Plaintiff's native language.
Plaintiff's counsel looked justifiably alarmed -- after all -- his client was speaking to opposing counsel outside of his "hearing." As he moved to intervene, however, I tilted my head a bit and mouthed "I think it's a good thing." We both relaxed, leaned back in our chairs and watched the two carry on an animated and increasingly friendly conversation. We were done and the parties were unusually happy with their settlement a brief twenty minutes later.
I've seen small talk settle cases of much greater magnitude and after long, difficult negotiating sessions, particularly when the principals meet alone, often for the first time. In one particularly contentious trademark action, I refused to let the parties leave before the two businessmen sat in a room together in the absence of counsel or mediator in a final attempt to work things out.
They emerged fifteen minutes later, not only laughing, but puffed up with pride that they'd so quickly done that which their attorneys had been unable to do -- settle a case that didn't make any sense to try. When I asked the parties what they'd said to each other, they replied, "baseball, basketball, football. Then we settled."
The Perils of Shuttle-Negotiation
Here, then, is the weakness of shuttle negotiation. The parties' attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.
The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.
I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.
[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.
First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.
Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.
These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."
Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.
Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.
Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).
I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.
My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.
With many apologies for the incomprehensible blurriness of this interview with Woody Mosten conducted in the noisy exhibitor ballroom at the NYC Sheraton Hotel during last week's ABA Dispute Resolution Conference, I nevertheless provide the interview because of the importance of Woody's message.
Woody consults with attorneys who wish to make the shift from legal to mediation practice, continues to mediate himself, authors books on mediation and career development and conducts training on mediation practice and professional development. As Woody's web site states:
Forrest “Woody” Mosten has an international reputation for high quality mediation training from introductory courses to advanced supervision for highly experienced mediators. He maintains an intense focus on cutting edge issues in law and the craft of mediation skill building, and enjoys helping other professionals build their own profitable mediation practices.
Woody Mosten's Mediation Training is an Approved Continuing Education Provider by the California State Bar CLE & Family Law Specialization, the California Psychological Association Accrediting Agency, and the California Board of Behavioral Sciences. Most courses are approved by the Association for Conflict Resolution.
The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one.
Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes. Pursuing settlement helps clients to reduce the total cost of conflict management in their organizations, provides flexibility and protects valuable relationships with partners
The American Arbitration Association®’s (AAA) Non-Binding Dispute Resolution Services for Businesses and Consumers is a suite of settlement services and solutions that include:
Non-Binding Arbitration and Mediation Contract Clauses Guide
An important element of the suite is access to AAA staff facilitators who stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand. To reach a facilitator, simply select the “Contact Us” option below to send an email requesting information
Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith." As the Court in Vidrio v. Hernandez(2d DCA) explained today:
In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.
I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119. Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions. Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is toprovide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.
As every lawyer knows and most students of high school geometry must learn in mastering "proofs," the answer often comes first, the rationale later. I used to say, "I'm a litigator, I can rationalize anything." As a mediator, my rationalizations have turned from the way in which facts can be shoe-horned into causes of action or affirmative defenses to the way in which harm arising from a dispute (including, most assuredly, the moral harm of injustice) can be monetized.
Now David Brooks in the New York Times (which appears to have disabled the "copy" function/1) tells us that philosophy has been sacrificed on the alter of emotion in his column The End of Philosophy.
As Brooks explains, reasoning comes after moral judgment and "is often guided by the emotions that preceded it." The good news is that those emotions are not merely competitive. Brooks again:
Like bees, humans have long lived or died based on their ability to divide labor, help each other, and stand together in the face of common threats. Many of our moral emotions and intuitions reflect that history. We don't just care about our individual rights, or even the rights of other individuals. We also care about loyalty, respect, traditions, religions. We are all the descendents of successful cooperators.
My mediation experience teaches me that the "soft" arts of influence, empathy, community-building, and prejudice reduction, are as important (and often more important) to the successful (i.e., satisfying) resolution of a lawsuit than our prized ability to parse the evidence, rationalize away the bad and privilege the good to sell our "proof" to judge or jury.
Most importantly, I find that when attorneys' clients leave a mediation with the belief that a certain rough justice has been obtained, they are more satisfied with the outcome, and with their attorneys' representation of their interests, than they might have been had they left with 10% more change jingling in their pockets.
The experts who study mediation tell us that "neutrals" don't make the difference between settling or not settling. The cases will settle with or without us. The difference mediators make is not settlement, but client satisfaction. Satisfied clients are an absolute necessity for a successful legal practice at any time. In these hard times, legal practices may fail in the absence of resolutions addressing the justice issues your client sought out a lawyer to resolve in the first place.
Money is the instrument. But justice is the issue.
Discouraged by the adversarial process? Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?
This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people. It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit.
The question is this: Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.
"Drunk Lawyer" is, after all, free on YouTube!
Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.
You didn't hear it here first. But you will hear it here often.
This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.
As a mediator, the question I hear most frequently from lawyers is "How do I convince my opponent to sit down and negotiate without losing my competitive advantage?"
Believe it or not, the answer is transparency.
If you can remember way back to last July, when firms like Microsoft and Yahoo were still engaging in business as usual, you might recall that a merger fell apart because Yahoo was acting "weird." At least that's what Microsoft's chief executive, Steve Ballmer, told the Wall Street Journal.
"We had an offer out that was a 100 percent premium on the operating business of the company and there wasn't a serious price negotiation ... until three months later. It was a little ... weird."
Lawyers know that three months rushes by in the blink of an eye. The board of directors meets. It seeks an analysis from the mergers and acquisitions people, who consult with outside counsel's antitrust department, which renders a decision but whose members first have to chat with the tax guys. Then there are the IP people with whom to discuss license agreements and, of course, the managers in the human resources department, who may or may not have advice about executive parachutes - platinum, golden or brass.
And yet the Yahoo-Microsoft merger fell apart because Microsoft felt that Yahoo's delay was "weird."
Let's go back to what every trial lawyer knows. In the absence of information, people make stuff up. Weird stuff.
And the stories we tell ourselves about our uncommunicative commercial partners do not include one where the other guy is laboring day and night to fulfill our fondest desires. No. In the absence of information, we weave elaborate conspiracy theories in which our opponents are scheming to fleece us of our rights, obstruct our prospective economic advantage and turn our world upside down.
Your dentist can tell you what your opponent wants to be told. A fully illustrated pre-game outline of the upcoming procedure that goes something like this "First I'll put a little numbing cream on your gum. That way the shot of Novocain won't hurt too much. Then I'll drill," she'd say, holding the fearful appliance up and switching it on. "It may sound louder in your mouth than it does here in my hand, but I'll only have it on for about five minutes, after which ... etc., etc."
So how do you get your opponent to the bargaining table without sounding weak?
You say "Listen, Ted, I know both our clients believe their cases are as good as gold but after an initial round of discovery, it's my practice to call a timeout to discuss settlement."
"How does that sound to you?"
Ted says it sounds all right. Which it does. Because Ted's got three incredibly acrimonious cases in his practice right now. Last year, one of his adversaries served an ex parte application with three bankers boxes of exhibits the day before Christmas. At 4:59 p.m. And she scheduled the hearing for hearing on the day after Christmas. Sure, the judge would deny it, but Ted couldn't assume anything. He worked 15 hours on Christmas Day.
So it sounds good to Ted.
More important to your own litigation plan, your opponent has just agreed to come to the bargaining table, even though the actual meeting won't be held for several months. When the appointed hour arrives, you will not have to ask for a settlement conference at a time when it might show weakness on your part. It's part of the plan.
Challenges to good faith settlements that cut off the rights of non-settling defendants to seek indemnification and contribution from settling defendants are nearly always doomed to failure. Trial courts are understandably eager to clear their dockets and there's no docket-clean-up pitcher like the first defendant to settle. Deny the motion and bring a settled defendant and his trial-ready resources back in to the litigation when the first defendant-domino has just successfully toppled over? Not likely, my friend. Not in the trial court at any rate.
These motions are so difficult to oppose that I've seen a target defendant threaten a marginal player (my client) with sanctions just for challenging the target's very low six-figure settlement in an eight-figure antitrust action.
Best quotation: "The hospital contends that the physicians‟ $200,000 settlement -- representing 2 percent of plaintiffs‟ $10 million damages estimate -- was so far out of the “ballpark” it was not even in the parking lot." With a first runner-up to "If section 877.6 is to serve the ends of justice, it must prevent a party from purchasing protection from its indemnification obligation at bargain-basement prices."
The Court of Appeal relied upon the following "facts" in finding that the trial court abused its considerable discretion in granting a good faith motion to defendant physicians in light of defendant hospital's opposition.
payment of $200,000 in settlement for a $10 million claim, which the appellate court found to be "wholly disproportionate." As the Court opined "[e]ven a slight probability of liability on [the settling doctor's] part would warrant a contribution more significant than 2 percent."
the "evidence" supporting the court's finding that the settling physician's probable fault was "not de minimis," which appears to have been based upon Plaintiff's attorney's fault analysis (not generally known for its unbiased nature) and the physicians' counsel's candid (?) suggestion that his clients' contribution to a global settlement might be in the range of $1.5 million;
the availability of $2 million in coverage, which "militated against a good faith determination" because the settlement constituted only 10% of available policy limits [carrier alert here!];
the non-settling Hospital's contention that the physicians and their attorneys engaged in "bad faith tactics" during two mediation sessions -- a factor the appellate court acknowledged it was barred by mediation confidentiality from considering -- but which it neatly avoided by concentrating on post-mediation negotiations; /*
the timing of the physicians' settlement offer, which suggested to the appellate court that their "reason for entering into the settlement with plaintiffs was to cut off the hospital's . . . right to indemnity from the physicians" (I thought that was a legitimate reason to settle litigation but see the Court's citation to Mattco Forge, stating that when a defendant “enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” Mattco, supra (emphasis added); and,
a consideration I've never seen defeat a good faith motion before - that a settlment "dictated by the tactical advantage of removing a deep-pocket defendant . . . is not made in 'good faith' consideration of the relevant liability of all parties. . . ." (leading to the question whether we're now required to consider the interests of clients other than our own in entering into a settlement agreement on a contested claim)
If this case isn't depublished (an unfortunate California practice) or taken up for review, it will bear re-reading and deeper thinking about the stategy and tactics of breaking away from the mob to cut a separate deal beneficial to one's own client without "consider[ing] . . the relevant liability of all parties . . . "
*/ This is a good place to note the importance of either indicating in the parties' post-mediation written negotiations that the mediation is continuing (hence the communications remain absolutely protected) or that the mediation has concluded (hence bringing those post-mediation settlement negotiations outside the scope of the strictly enforced mediation confidentiality restrictions).
Mediator Victoria Pynchon relies heavily on human dynamics in helping parties acknowledge realities they may prefer to avoid.
By Mindy Farabee
Daily Journal Staff Writer
LOS ANGELES - This past fall, Los Angeles-based mediator Victoria Pynchon set aside her practice for three months to go to camp.
As a volunteer during the 2008 presidential election, the former attorney headed over to Nevada for 12 weeks of campaigning at Camp Obama, originally with the intention of monitoring polls during that state's two-week voting period.
As a monitor, she had been asked to observe silently and not stray from a specially designated corner of the room. But that's just not Pynchon's style. So, two days into the monitoring, she asked to be turned loose in the field, where she could engage directly with voters and hear their concerns.
That's much the same way Pynchon likes to approach conflict resolution.
"What the law does is strip someone's story of its texture," she said. As a mediator, "I'm vitally interested in people's subjective experience in the world."
Pynchon, 56, spent 17 years practicing law, focusing on intellectual property, consumer class actions and environmental insurance, first as an associate in the 1980s and '90s at Pepper Hamilton and Buchalter Nemer, then as a partner at Hancock Rothert until 2004.
That's when she turned professional mediator and said she found her calling.
"Being an attorney is a challenge to make yourself a better person," Pynchon said. "But it also can be a channel for your character defects. It trains you to be crafty, to be adversarial, to be competitive. It's a big expensive board game."
Mediation, on the other hand, she said, plays to our better angels.
"I'm evangelical about this work," Pynchon said. Because as a species, "we're hardwired for reconciliation."
Pynchon has handled some 300 disputes thus far. In her quest to reach a settlement, she draws not only on her legal background but also relies heavily on her personal insights.
A San Diego native, Pynchon grew up in Southern California and attended UC San Diego, where she received a degree in literature in 1975, before heading off to law school at UC Davis.
The early days of studying fiction did much to shape her sense of what makes for a satisfying resolution, she said.
"It's all about story," Pynchon said. "There's no such thing as a pure money dispute. We work with narrative, and narrative needs to be coherent. It needs to be felt, it needs to be authentic, and it needs to be multidimensional.
"Only lawyers have legal problems. Business people have business problems with justice issues."
The art of mediation, as she sees it, centers heavily on finding ways of helping the parties to acknowledge realities they may prefer to avoid.
"One thing mediation does is help lawyers accept loss," she said. "People who say there's no emotion involved with business litigation are not business litigators. Or they don't believe anger is an emotion."
So far, Pynchon is having a busy 2009.
This summer, her book, "A is for Asshole: the ABCs of Conflict Resolution" comes out in Janis publications, while at the beginning of March, Pynchon moved her practice from Judicate West over to ADR Services. Finding a new home was largely about finding a venue in which she could better utilize her experience in complex commercial law, she said.
Pynchon laughingly describes her style as a certain "reckless fearlessness," but she said what she finds most effective is her ability to speak the language of business.
Soon after, a lawyer showed up on her doorstep with a landlord unwilling to settle a construction dispute, despite his weak case. Pynchon began to talk poker, and suddenly, "looking at the case as a game helped him make a rational business decision," she said.
Though Pynchon's use of gambling analogies might help her distill facts for her clients, she's respected for refusing to play games herself, according to Richard Wirick, a partner at Fainsbert, Mase & Snyder, who heads up the insurance and reinsurance coverage practice group in litigation.
Wirich said Pynchon helped his firm settle what he described as s a "massively complex" real estate case in 2½ mandated sessions.
"She made it all go away like magic," Wirick said. "She doesn't suffer fools lightly, but she will listen exhaustively, and she's very good at taking the long view and showing people the weaknesses of their case."
That and a little creative thinking, said attorney Michael Cypers, who used Pynchon to settle an employment-related matter, is what makes her unique.
"She was very willing to consider out-of-the-box things," said Cypers, a litigation partner at Mayer Brown, who specializes in securities. Faced with a breakdown in negotiations stemming from trust issues, Pynchon took the unusual step of ending a long day by sending the plaintiff and defendant out for a friendly drink.
"She was looking for where the human dynamics were," Cypers said.
Bio: Victoria Pynchon Mediator Age: 56 Affiliation:
Areas of Specialty: Complex commercial litigation with emphasis on intellectual property, securities fraud, antitrust, unfair competition, catastrophic insurance coverage, nationwide class actions; executive termination disputes; and partnership and business disputes of all kinds.
Rates: $450/HOUR; $4,500 full day; $2,250 half day
This year, 2009, celebrates the 200th anniversary of the birth of Charles Darwin, whose theory about how change occurs over time in organisms has had an impact far beyond the biological sciences. Variations on Darwin’s theory of evolution through the process of natural selection are used to explain how changes occur in the formation of culture and societies, companies, technology, and so on.
The same thinking has been applied to methods of dispute resolution, which over time adapt to changes in their surrounding environments. In fact, I recently had the privilege of interviewing cultural anthropologist Robert Carniero, curator of South American ethnology at the American Museum of Natural History in New York, who explained his experiences living for periods with different tribes in the Amazon basin, and their approaches to dispute resolution. As Dr. Carniero explains it, primitive and rather brutal forms of dispute resolution – such as beating each other with heavy wooden clubs – works just fine when the groups consist of no more than 50 or 100 people and those not content with the outcome can just move away.
Things get more complicated, however, as societies grow in size and complexity, and so far all large societies have evolved within them formal justice systems. In fact, it appears that societies cannot grow larger in size and complexity without first having evolved a system of resolving disputes that can keep the peace between the citizenry and ensure that markets efficiently function.
Which leads naturally to consider the future of private dispute resolution in a global, interconnected marketplace, and in particular the potential for mediation as an enabler for more efficient global commercial activities. Today, mediation is an organism that thrives in particular niche ecosystems like the UK, Australia, and North America. The question is whether it can thrive in other locations, and whether it can be used to resolve cross-border disputes. Anyone who has experienced mediation will understand its potential to grow and flourish as a critical part of a globally inter-connected economy, but it would be folly to ignore the challenges in breaking out of a local niche practice.
If I had to live my commercial litigation career all over again, I would start by making sure I understood everything I possibly could about the potential for insurance coverage, particularly when reading the terms of coverage makes me believe there is none.
Mediation in business disputes to double Attempts to resolve commercial disputes by mediation will double over the next year, as businesses seek a cheaper and faster alternative to litigation, according to a new survey.
The Irish Commercial Mediation Association (ICMA) issued a questionnaire to the managing partners of more than 3,500 law, accountancy and other professional firms to ascertain attitudes towards commercial mediation and compile statistics on mediations over the last three years.
The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger.
I'll need to see the study itself to be convinced. The study described merely suggests that people offering a greater number of solutions to a party pre-instructed to stonewall will become angrier than those offering fewer solutions, i.e., that those who persist in trying, and failing, to resolve a conflict, get more and more angry and frustrated than those who give up more easily.
This does not suggest to me that "greater negotiation flexibility" necessarily results in a greater degree of anger in the negotiation dyad, but only in the person attempting to resolve a dispute that his partner has been instructed to resist. Though an apt description of the adversarial process, this is not a fair depiction of persistent attempts to negotiate resolution where the negotiators are given a fighting chance of closing a deal.
As the article explained, study participants were told that a neighbor was playing music too loudly and instructed to ask that it be turned down.
During the interaction, the [participants] followed a script of uncooperative responses such that the task could not be resolved.
"We categorized the verbal responses of participants during the task into seven types of negotiation strategies, including problem-solving and aggressive/threatening. Individuals who used a smaller set of strategies were considered less 'flexible' than those who used a greater variety of strategies," Roubinov said.
The [researchers] . . . also looked at the intensity of participants' facial expressions of anger or frustration, and measured participants' biological response to the task using cortisol, a stress hormone.
"Our results indicated that greater flexibility may not be the healthiest approach," Roubinov said. "Unlike less-flexible participants, those who tried a greater variety of responses showed more intense facial expressions of anger and frustration. Cortisol levels in more flexible participants also reflected an unhealthier biological response to stress than the less flexible participants."
Of course persistent participants become increasingly frustrated (and angry!) when their multiple suggestions to resolve a dispute are met with stonewalling from their negotiation partner. This doesn't suggest, however, that "greater [negotiation] flexibility" is not healthy. It suggests that stonewalling leads to anger, one of the reasons that mediators are employed to help all participants in a negotiation generate potential solutions.
I'll look forward to seeing the study when it's released but based upon this article, I'd say the conclusion drawn is misleading broad and unduly pessimistic.
Mediation is all about story, even when everyone thinks it's only about money. Here's the story of ADR Services, Inc., which I joined today, and its dynamic founder and CEO, Lucie Baron. From ADR Services' Website, one of those stories you must meet the hero of to believe.
Lucie Barron, our founder and President, has quite a compelling story to tell. A single mother with seven young children, her indoctrination to the legal system came during a fee dispute with her lawyer, who was seeking additional compensation. A formidable competitor even then, she went about the daunting task of reconstructing the file on her case, arguing that she had actually been overcharged. The panel agreed, dismissing the attorney's claim and awarding for her.
ADR Services, Inc. had humble beginnings in 1994, sub-leasing a couple of rooms from a law firm and handling cases on a catch as catch can basis for a handful of retired judges who agreed to work through its panel. Until recently and a maturing of the marketplace, the company managed the impossible, virtually doubling in size every year. Today, the ADR Services, Inc. panel consists of more than 150 neutrals, both retired judges and attorneys throughout the state.
A highly visible player in the ADR market, Ms. Barron is indefatigable, working countless hours while seemingly attending every industry event. In February 2007 the company headquarters moved to a beautiful new suite of offices in Century City that is 50% larger than before, and a new, Northern California office opened in April 2006 in San Francisco. After the addition of offices in Downtown Los Angeles, San Diego, and Las Vegas, ADR Services opened its newest office in Orange County in 2007. The company projects to administer more than 7,500 cases in 2008.
Originally from Australia, Lucie Barron was a psychologist by training with an MBA from McGill University, Canada and had a keen eye for business. Ms. Barron needed to find a way to support her children, and she realized that ADR was important for business and a legal trend. After spending months devouring any information she could find on the subject at UCLA business and law schools, she wrote to a list of retired judges and invited them to join her fledgling panel. Enticed by her vision and determination, eight judges initially agreed to join what has now become the fastest growing ADR provider in California.
I'm attaching a Policyholders Guide to Mediation not because it's particularly useful in regard to the strategy and tactics necessary to be a successful mediation advocate, but to share with my fellow mediators just how low an opinion many litigators have of us.
Notice on page 2 (Mediation Downsides) the following:
mediator may inappropriately discourage/scare the policyholder to force a settlement
mediator may "tell insurance company things you ask them to keep secret" (!!!)
mediator may have a financial stake in keeping the insurance company happy
NB: All names and situations altered to protect my own and my "opponents'" anonymity and to honor the confidential nature of the mediation.
This experience is going to take a while to digest. First let me tell you what was GREAT about my recent mediation experience.
I hired an attorney who was a full-time, highly experienced mediator.
Because the mediation concerned a long-term contractual relationship with an emotional breach and immediate cessation of business, I choose a community mediator because I wanted someone skilled not simply in pressing the parties for compromise, but in "transformative" (whole dispute) mediation (about which more later).
With two talented community co-mediators, I experienced the freedom of expression in joint session that confidentiality provides.
I learned how much courage it takes for all parties to face one another and talk about their own part in causing the dispute-creating series of events.
I experienced the nearly invisible but critical support and encouragement provided by an "audience" (lawyers, mediators, insurance representatives) "schooled" "on the spot" in respectful listening.
Though the unguarded nature of my conflict-narrative and the pain caused by listening to my former partners' account initially felt like walking a tight rope without a net, as my story proceeded without interruption or apparent contempt from my "opponents" a great sense of comfort and freedom came over me. I'm an old hand myself at creating an atmosphere of hope and safety so I didn't think that "trick" would work on me. I found, however, that the mediators' ability to assure me of the confidential nature of the process and the benefits of frank discussion, enabled me to tell my truth, in as multi-dimensional, textured and admittedly fallible manner possible. It amazed me -- as the client -- that so subtle shift in the atmosphere of the room would permit me to say, in all sincerity, that "though our experiences of the same series of events diverge wildly, I don't believe either of us is lying. We've simply strung the facts together in a different way from opposing points of view."
The opportunity the co-mediators gave me to apologize for "my part in the dispute" while still asserting the strength of my "position" that I would not be blackmailed, bullied or defeated, left me ready to settle or proceed without feelings of fear, shame, or anger.
To the extent I'll be able to tell this story (and I'm not certain I'll be able to until many years after its final resolution) the readers of this blog will be the first to know.
It's not magic. It does, however, rest upon the mediators' wholehearted belief that human beings desire reconciliation as much or more than they desire money or the "stuff" that money provides. It is premised on the elementary principle that the disputants would rather be happy than right.
Best advice to arise out of this session: when you're mediating, hire an attorney-mediator to represent you just as you'd hire an insurance attorney if you had a dispute with your carrier. One of the smartest decisions I've ever made.
Good resources for transformative mediation practice:
I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business. Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times. This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be. So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution
In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.
What You Will Learn
This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:
How to choose between litigation and ADR.
The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
The Ten Mediation/Settlement Conference Traps for the Unwary.
Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.
From today's Wall Street Journal, Don't Buckle in Layoff -- timely advice for one of life's worst case scenarios - being made "redundant."
First piece of layoff wisdom:
Negotiate Your Severance
While not required to do so by law, many employers offer severance packages to laid-off employees. The package's size is usually based on the employee's length of service -- some are entitled to two weeks of pay, while more seasoned employees may receive as much as a year's worth.
If you've been working at your company for only a year or two, there are ways to wring a little more pay from your employer. First, ask that any unused vacation days get tacked on to your final paycheck. (You can also try to do this with sick days, but it's often a long shot.) If you have a stellar record with the company, it's also worth asking for more severance pay or an extension of your health coverage.
Watch for undue pressure to sign release of claims when handed a severance package. "You must be given at least 21 days to think about the package," Milne states, "when you're terminated but not part of a group."
You must be given the option to revoke the waiver within seven days after you sign it. "This must be set out, in writing, in the release of claims," Milne notes.
You also have rights if severance accompanies a group layoff or early retirement program, he indicates. The ADEA stipulates a period of 45 days or more to make your decision, along with the seven-day revocation provision.
Milne says these requirements alone, unmet, won't give you enough to sue. However, if you have evidence of age discrimination, a signed release that doesn't follow ADEA guidelines won't block you from a bias claim.
The British call layoffs "redundancies." I prefer the American term - layoff - because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")
Why the attention to semantics? Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability.
So how do you avoid the looming threat of litigation by laid off employees? According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance.
Why do terminated employees bring suit? It's not, as I'm always saying, just about the money.
Researchers have found, for instance, that:
Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
Blame was not strongly related to the claiming process
There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
the shorter the notice of termination, the greater the likelihood of suit
Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.
Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,
negative experiences with supervisors;
the belief that processes used by the supervisor are unfair.
violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
perceived violations of equity and distributive justice (the perceived fairness of outcomes)
perceived violations of interactional justice (the perceived fairness of the nuances of interpersonal treatment)
survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.
Because Termination Causes Employees to Reevaluate Fairness in Working Conditions. And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.
The researchers have found that:
people react strongly to nuances of treatment and style at the time of termination
the quality of dismissal affects people’s decision to bring suit as much as termination itself.
a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.
The experts therefore recommend that employers:
treat their laid-off or fired employees with compassion and respect at the time of termination
give several weeks advance warning to all laid-off or fired employees
provide terminated employees with help in finding new employment
give terminated employees honest accounts for the cause of their termination
provide transitional alumni status to terminated employees when possible
provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
offer counseling services to terminated employees to ease the psychological shock of employment termination
some of the savings from layoffs is initially eaten up by severance payments
at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.
If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.
Because litigation is so often settled with insurance dollars, from time to time we bring you updates on recent judicial interpretations of common policy terms. The following article answers the question in the Fifth Circuit whether CGL policies cover certain types of construction defect claims.
A recurring dispute between insurance companies and Commercial General Liability (“CGL”) policyholders concerns whether CGL policies provide coverage for construction defect claims. In its recent decision in Mid-Continent Casualty Co. v. JHP Development, Inc., No. 05-50796 (January 28, 2009), the Fifth Circuit takes the latest step in Texas jurisprudence on the issue, concluding that the “business risk” exclusions in such policies, at least as currently drafted, do not exclude coverage for damage to a contractor’s non-defective work even if caused by his own defective work.
Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.
“Charon QC” is a lawyer, after a fashion, but is not a practitioner. He has taught law for many years - and, to his surprise, still enjoys law; although he enjoys other academic interests as well. Law is fascinating more in the human interest than the letter, but compared to literature, science or philosophy, it does not engage the mind in quite the same way. He awarded himself the title QC when the Lord Chancellor suspended the award for real lawyers. Now, as no-one can instruct him in any matter, or would wish to, he is free to comment as he wishes on matters which catch his attention. He is, of course, a figment of a febrile imagination . He drinks Rioja - in fact he will drink any red wine, smokes Silk cut, reads all the newspapers (3 Tabloids 4 broadsheets…most days) , has a passion for motorbikes and sips espressos three time a day - ordering two each time. He sleeps for 4 hours a night - but that is his problem. He gets up and starts work (sometimes, it has to be said… writing a blog post) between 3.30 - 4.00 every morning…
He is also a habitue of The Bollo and The Swan in Chiswick/Acton - and some other well known bars in London. When he finds a meal he enjoys - he eats it every day until he can no longer face eating it again. At breakfast, he always has one egg, two slices of toast, two slices of bacon, some baked beans, two espressos, a glass of tap water and an undisclosed number of Silk Cut cigarettes - and always starts eating the egg first… on a bit of buttered toast; turning the plate around so the egg is conveniently on the right hand side of the plate. He did not know he did this until it was pointed out to him by several friends. Breakfast takes approximately 35 minutes and is often taken while reading his tabloid of choice and The Indie… and then it is but a short motorbike ride back to his Staterooms where the day can begin. Breakfast is at 7.00 and more often than not Charon sits at a table outside - even in very cold weather - so he can keep an eye on the world as it goes by. He can also smoke outside without offending other early risers.
A senior in-house lawyer is meeting with the CEO to talk about a problem the in-house lawyer had been asked to solve. The in-house lawyer describes how his efforts at negotiation had failed, so he had taken steps to find a random person off the street so that person could resolve the problem for the in-house lawyer. The CEO looked at the in-house lawyer like he was out of his mind. The in-house lawyer, now worried by the CEO's reaction, asked if the CEO would feel better if he instead chose 12 people randomly from off the street. The CEO fired the in-house lawyer.
Does anybody think the CEO is crazy? Me either. But let's rerun the story with three extra sentences.
Knowing that a bench or jury trial is the only Better Alternative to a Negotiated Agreement (BATNA) what's a concerned CEO to do? No, I'm not going to say "hire a mediator." I'm going to say this. Hire a litigator who understands and is skilled at interest-based bargaining. The mediator, after all, is your last option. You need an attorney who maximizes the potential for the best negotiated resolution possible at every major turning point in the litigation. If you've hired a hot-head litigation firm, that's good. There's absolutely nothing wrong with playing hardball. Just make sure you also have available the litigation marital counselor -- at least one attorney in the hardball lawfirm, or settlement counsel outside of it, who is able to call a cease-fire and bring the parties to the negotiation table.
I like what Patrick J. Lamb has to say in his blog and in his bio. He's got big firm background and 21st century thinking. If I were looking for a business litigator/dispute resolver/efficiency machine, it's to people like Patrick I would go.
Effective July 1, 2008, Connecticut established a mediation program for foreclosures. Statistics available for the latest period ending November 30 2008 reveal some interesting detail. Mediators are working diligently to rescue residential homes from the auctioneer. However, the program is missing important components.
In the period of July 1st to November 30th, there were 9,917 foreclosures filed in the state, an average of 450 cases per week. In that period, mediators successfully negotiated 519 cases so that homeowners got to remain in their homes. This is just slightly over 5% of all cases filed. Only 380 cases or 3.83% resulted in a modification of the mortgage terms. Despite the hard work of Connecticut’s mediators, the state’s residents are not being protected from foreclosure.
PROVIDENCE, R.I. (WPRI) - In an effort to protect families from foreclosure, Providence Mayor David Cicilline unveiled two ordinances Monday morning during a news conference in the city's Olneyville neighborhood.
A proposed state law, that would have provided similar requirements, failed in the General Assembly last year. Rhode Island Housing Executive Director Richard Godfrey applauded Providence for stepping in to provide that protection.
The second proposal, Foreclosure Mediation Ordinance , would require financial institutions and property owners to engage in mediation with a HUD-approved counselor before moving ahead with a foreclosure.
"We have a court adjunct mediation program," said Schmenk. "The worst thing people can do is do nothing. The best thing is to get an answer filed on their behalf and open up a discussion with the mortgage holder to avoid it going to the foreclosure sale. Often times they can get something worked out with the lending institution short of losing their home."
When a foreclosed home goes up for auction bids start at two-thirds of the property's appraised value.
"Most time the lenders are holding significantly more than that in debt," said Schmenk. "We've noticed in a number of cases things get worked out and they are able to enter into some kind of accommodation that works for lender and mortgage borrower."
Schmenk encourages individuals facing foreclosure to take part in mediation programs.
There was a mediation just last week in Defiance County, said Cheryl Timbrook of the common pleas court. Overall, she said that they haven't had many requests for mediation so far.
Sonnenberg said Henry County has had a mediation program available for foreclosure for a year. She said there has been an increase in requests for mediation since the court started sending out information about the program as well as how to file an answer to the foreclosure summons received by defendants.
"I don't think many people knew about it before," she said.
Chris DelFavero, mediation coordinator for the state's Northwest Ohio Court Mediation Services, said he's seen an increase in individuals asking for foreclosure mediation. Northwest Ohio Court Mediation Services covers Henry, Defiance, Fulton, Paulding, Williams and Putnam counties. The program started last spring.
"With the help of the (Ohio) Supreme Court we established a process for referrals through the (county) clerk's offices," said DelFavero, who added that referrals started to pick up this summer. "Last month I had the most referrals since we started. I had 11 referred this past month. We started with just two or three a month, and now we have two a week."
DelFavero said that many cases involve jumps in interest rates, causing payments to increase or individuals who have seen a decrease in pay.
"Those are the cases we hopefully can resolve and come up with a repayment plan or refinance their rates," he said. "The general problem in the industry was the subprime rates. Some of it is the economy, with people losing their overtime. Sometimes loans are given based on people making $40,000 and then they lose their overtime so now they are making $30,000. They are working, but may have fallen four to five months behind. The lender usually will work with them."
Because these parties couldn't agree on what year it is, however, no one balks at my suggestion that we write up the entire deal -- settlement agreement with mutual general releases; the Stipulation for the Entry of Judgment; and, the proposed Stipulated Judgment itself.
The first problem is everyone's failure to bring a form Settlement Agreement and Mutual Release, let alone one that included enforceable terms for the entry of a Stipulated Judgment in event of default.
ADVICE??? Carry these documents on a "flash" or "jump" drive whenever you're going to a settlement conference or mediation. Heck, carry them with you to the first day of trial where you might be startled to learn that your adversary is prepared to settle the case right now!
Fortunately, I had access to my own files which contained detailed forms for everything we needed, forms I offered to counsel as guides. I did so only with the express understanding that I did not recommend my own forms as adequate, complete or enforceable.
I'm just the mediator, not the legal representative of the deal in loco parentis.
It's a good thing we made the effort to fully document the deal because it threatened to fall apart over all of the following terms:
the dismissal of ancillary proceedings
forbearance from inducing future actions by non-parties
liquidated damage clauses for the breach of certain critical deal points
indemnification for future actions if induced by certain of the parties
Each of these items required separate negotiation and compromise and as to each I helped the parties calculate the degree of possible misbehavior by their adversaries and the protections that might "fit" the probable harm. I do not believe the parties would have been able to resolve these terms (as well as others too confidential to mention) without third party assistance. One was so difficult to predict both the series of possible events and potential remedies that we provided for arbitration of that term alone in the event of alleged default.
When we all finally left the building at one in the morning, we had fully completed paperwork, signed by all parties in hand.
And yes, I was the only one present who could type.
The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms: they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.
Are you wondering what your mediator is thinking at times like this?
That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial.
I don't have a plan, but I do have ideas. Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.
"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds, "this puts them on our side for a change. If we make the money we believe we can, they'll benefit too."
"I thought you said you knew you could," I say, laying groundwork for the contingency ahead.
"Yes, absolutely. We know we can."
Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.
"They sand-bagged us," says Plaintiffs' counsel. "We'll report this to the Judge. They didn't come here in good faith. They're deliberately wasting our time."
After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment. Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.
When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default.
"In a sum you hope the jury will award you at trial," I proffer. "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial. And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."
Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement. If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up. And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality.
Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome. Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts. Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.
Fortunately, contingent contracts can provide a way out of the mire. With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.
Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:
bet on rather than argue about their different forecasts for the future;
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll only be here for an hour").
Defense counsel wants to write up the "deal points" and make a quick getaway. Before she does so, we have the following conversation.
"We'll need three years to pay it."
I fake calm.
"Your security?" I ask, my mind racing to the other room where an already unhappy set of plaintiffs are sitting.
"We don't have security. I told you my clients are broke. I also told you we'd need terms but you didn't want to talk about them."
This is true. From hour one the defense insisted they'd need to pay over time and the Plaintiffs wanted to know what terms the defense was thinking of. Throughout the day I'd told them both the same thing: "let's see if we can agree on a number before we start talking terms."
I have reasons for this. They are as follows:
once people have agreed upon a number, it's far more difficult for them to walk away from a deal; the Plaintiffs have already begun to think about what the money will mean to them and the defense has begun to imagine life without the litigation;
people are risk averse. So long as there is no (or only minimal) money on the table, it's easy to refuse to engage in the often difficult process of readjusting their expectations and compromising their desires. When there's enough money on the table to make both parties want to settle, walking away involves loss.
This is often the trickiest part of the mediation. The three-year time table and absence of security is, I know, enough to blow up this deal. I'm going to take heat from the Plaintiffs' side, for resisting their efforts to learn the Defendants' terms before they spent an entire day agreeing upon the price. I don't, however, regret my decision. If these terms cause the negotiation to break down now, they certainly would have done so in hour one.
How I help the parties negotiate what is poised to become a rancorous impasse in the next post.
It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office. The case has been up on appeal twice and is now scheudled for trial in February. All defendants but the final three standing have settled. Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns.
"Let's just write up the deal points," says Lawyer No. 1, yawning. "We can write up the full agreement over the long weekend."
Lawyer No. 2 turns to me and says "Judicate West has a form, right? Let's use that."
IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below. This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.
In order to facilitate the above specified terms of settlement, the parties further agree that on or before the day of they will execute or change the following:
Settlement / Release Agreement Prepared by _____plaintiff_____defendant
Request for Dismissal Prepared by _____plaintiff_____defendant
All relevant parties must sign below. Copies are acceptable in lieu of originals.
I know. You didn't expect the case to settle. At least that's what I've been hearing you all tell me since hour one of the mediation. But now we're in hour nine and the basic deal points have been reached. It's January 15. Trial is in 30 days. You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.
FORUM (FORUM & FOCUS) • Jan. 08, 2009 Every Case Is a Winding Road
By Victoria Pynchon
I have a confession to make. I am about to become embroiled in litigation. Though I preach the religion of negotiated resolution, I've nevertheless hired litigation counsel to assert my rights and pursue my remedies.
This is one of those moments when the rubber of our ideology meets the road of personal circumstance, the moment we are called upon to decide to walk our talk or take the more familiar road.
For more than 30 years - first as paralegal, then as a law student and finally as a commercial litigator - I'd been swimming in the waters of legal rights and remedies. The adversarial ocean had become so familiar a habitat that it rarely occurred to me that I was under the surface. One day toward the end of my first year of mediation practice, a much more experienced friend hooked me by the cheek and threw me on the deck of his ship, where I was gasping for air.
He'd asked me to co-mediate a will contest without the benefit on my clergy - lawyers with experience in the field. The "fish out of water" conversation that ensued went something like this:
Joe Mediator: "The family doesn't want to hire a lawyer. They just want to mediate."
Vickie: "But I know absolutely nothing about wills, trusts and estates. The parties need to talk to a lawyer first to learn their rights and remedies."
Joe: "You still don't get it, do you?"
Vickie: "Get what?"
Joe: "It's not about rights and remedies. It's about interests."
Vickie: "But how can they evaluate their interests without knowing their rights and remedies?"
Joe: "Because they're not interested in what the law says - they want to do what they believe is right for them as a family under the circumstances."
These people wanted to resolve a legal dispute without knowing their legal rights? Were they nuts? I understood "interests" - they were all the rage in ADR circles - the desires, fears and needs of the parties that drove them to take legal positions. Sometimes those interests were non-economic - the need for revenge, the desire to be personally accountable, the fear of failure, the hope for forgiveness and reconciliation. Others, though economic, could not be remedied by way of damages - better access to foreign markets, for instance, or wider distribution chains; the acquisition of better manufacturing processes; or, the retention of executives with "pull" in Washington. But all of those matters were secondary to legal rights and remedies, weren't they? You had to know what your rights were.
How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute?
I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict.
Here's what Lee Jay had to say:
I think that some is easy to recognize, like two Korean businessmen walking in with their counsel, knowing that they will have a value system that is based around how Korean businesses conduct themselves, and knowing that trying to overlay that onto an American legal system is going to be awkward for them.
But my belief is that NEARLY ALL conflicts are cross-cultural. The vast majority of what I see as cross-cultural conflicts don't present themselves as such at first glance because they may occur between two people of the same color skin, same nationality, same faith and even same family. I think we risk falling into the belief that cross cultural disputes only exist when we have people of different racial cultures at the table. We sometimes think we can turn our cross-cultural radar off when both people sitting there look the same to us. But to me, most conflict comes from different cutltural perspectives, different expectations based on how we were raised and what they see as "normal" or how people "should" conduct themselves.
The example I live with is that my wife and I were both raised Jewish, both families grew up with Christmas trees in our homes, too. We both went to UCLA, we both love sports, and the list goes on and on. When we married, we had the expectation that we would be relatively the same when it came to living our lives together. But when it came to communication styles, especially around disputes or disagreements, what we each learned from our families (the tribes in which we were raised and where we learned our norms) could not have been more different. Early in our marriage, this created constant cross-cultural disputes, which turned into conflict because of the assumptions we each made about what was the "normal" way to deal with disagreements. On paper, most people would never say that my wife and I were cross-cultural, but in real life, we had a huge cross-cultural rift that was invisible to most, and even to us at first.
The moral of this story is that we must ALWAYS be looking for evidence of cross-cultural issues, even when they don't present with different skin color.
Check out Liz Straus'25 Traits of Twitter Folks I Admire and 25 Folks Who Have Them. These "traits" are in fact disciplines. Achieving them on a consistent basis is work but work worth doing. Use them to guide your way in the new year and your conflicts with your fellows will decrease and your fortunes rise! Thanks Liz! Click on the link above for the Twitter "Folks" who have these traits and follow them.
don’t seek to be the center of any universe.
find great conversations and get to know the people there.
realize that every venue has it’s own culture and rules.
do their own talking and their own listening.
talk mostly about the accomplishments of others.
ask intriguing questions that invite others to join the conversation.
don’t worry when folks don’t respond to something they say.
have time for new friends, talk to them, listen to them, read their sites and bios, ask them questions — avoid assumptions.
have a different conversation with every individual and every business.
take embarrassing or private conversations offline.
are inclusive and encourage folks who exclude people to exclude themselves.
shout out good news, help in emergencies, and celebrate with everyone.
say please, thank you, and you’re welcome, and mean them.
are incredibly curious about what works, what doesn’t work, seek feedback often, and look to improve what they do.
study the industry and trends, watch how things occur, share information about those freely, but never break a trust.
offer advice when people ask. Help whenever they can.
aren’t “shameless.” Ask for help in ways that folks are proud to pitch in.
are constantly connecting people and ideas in business conversations that are helpful, not hypeful.
get paid to strategize business, build tactical plans, but won’t “monetize” relationships.
ignore the trolls.
keep their promises.
can be transparent without being naked … most of us look and behave best in public with our clothes ON.
listen to the hive mind, but think their own thoughts.
send back channel “hellos” to friends when there’s no time to talk.
understand that the Internet is public and has no eraser.
The relationships with people — social in social media — is what is changing things. It makes a business experience worth looking forward to and turns a transaction into a relationship. It’s different online because I can’t see you. When I meet folks who make that distance and darkness disappear, I respect and admire them.
"Twitter posts are like any other electronically stored information," explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm's Electronic Discovery unit. "They are discoverable and should therefore be approached with all appropriate caution."The increasing popularity of Twitter has made electronic discovery even more complicated.
Litigators! Remember, you and your opponent(s) have a choice. It's not only in arbitration that you can make your own law, but by way of stipulated case management orders cooperatively crafted with an eye toward relative cost and likely benefit (ask me for a template!)
I don't need to tell you that clients are cutting back in 2009. The litigation practice that thrives will be the most efficient and effective dispute resolution vehicle on the road.
And now, for your moment of zen - Charlie Dickens.
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but it is a joke in the profession. Every master in Chancery has had a reference out of it. Every Chancellor was "in it," for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers in select port- wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last Lord Chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown who said that such a thing might happen when the sky rained potatoes, he observed, "or when we get through Jarndyce and Jarndyce, Mr. Blowers"--a pleasantry that particularly tickled the maces, bags, and purses.
How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes, down to the copying-clerk in the Six Clerks' Office who has copied his tens of thousands of Chancery folio-pages under that eternal heading, no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts, there are influences that can never come to good. The very solicitors' boys who have kept the wretched suitors at bay, by protesting time out of mind that Mr. Chizzle, Mizzle, or otherwise was particularly engaged and had appointments until dinner, may have got an extra moral twist and shuffle into themselves out of Jarndyce and Jarndyce. The receiver in the cause has acquired a goodly sum of money by it but has acquired too a distrust of his own mother and a contempt for his own kind. Chizzle, Mizzle, and otherwise have lapsed into a habit of vaguely promising themselves that they will look into that outstanding little matter and see what can be done for Drizzle--who was not well used--when Jarndyce and Jarndyce shall be got out of the office. Shirking and sharking in all their many varieties have been sown broadcast by the ill-fated cause; and even those who have contemplated its history from the outermost circle of such evil have been insensibly tempted into a loose way of letting bad things alone to take their own bad course, and a loose belief that if the world go wrong it was in some off-hand manner never meant to go right.
Thus, in the midst of the mud and at the heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.
People tend to break off interaction and communication with those they dislike. When this happens people become stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate.
One-time Colorado Avalanche forward Steve Moore and former Vancouver Canucks winger Todd Bertuzzi met in Toronto on Monday for a court-ordered mediation hearing in an effort to prevent a lawsuit from heading to court.
It was the first face-to-face meeting between the two since Bertuzzi's infamous sucker punch during a March 8, 2004, game in Vancouver that ended Moore's career.
Let's see. That's nearly FIVE YEARS with no communication.
Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam?
I understand some lawyers are settling all their cases with mediators' proposals. Why is that? Are they savvier than their colleagues? Or do they just need the authority of the mediator to "sell" settlement to their clients?
Jump in here or over at John's place. Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas.
Psychologists tell us that we are not only "meaning making" beings, but that we are all born conspiracy theorists. Viewing a field of nonsensical, unrelated data, we naturally begin to "connect the dots" - to organize the information into a coherent, and often compelling, narrative.
Pattern making or conspiracy theorizing is a human survival mechanism. We have never been the fastest or the biggest creatures on the planet. We don't have the sharpest teeth or blend in all that well with the scenery. Our soft, easily punctured skin is not covered with a protective shell. In a pinch, we can't take a running leap and fly away from land-bound carnivores who might make us their prey.
We are, however, the canniest creatures on the planet. To avoid the tiger who made lunch of our best comrade, we surveyed the scene and committed the pattern of otherwise unrelated details to memory. Five banyan trees, a narrow stream, and, a pile of rubble left by a recent avalanche means "there are tigers here."
Couple this with Fundamental Attribution Error and you have all of the ingredients necessary to blame inadvertently caused harm on elaborate conspiracies cooked up by our untrustworthy companions - Fundamental Attribution Error being our universal tendency to over-emphasize the role of others' negative personality traits to explain why harm befell us.
So it is with our legal adversaries. Once the channels of communication have been severed by the filing of a lawsuit, attorneys and clients alike begin to make up "what really happened" based on predispositions, scattered conversations, faulty memories and scraps of documentation.
More than 360 Connecticut homeowners have avoided foreclosure in the past five months thanks to a new mediation program established by the state, but some think it’s still being underutilized.
The program, which was part of comprehensive mortgage relief legislation passed earlier this year, allows borrowers to meet their lender face-to-face to try to reach a settlement on an overdue mortgage.
If the borrower chooses mediation, lenders are required to participate and the process can delay foreclosure by 60 days or more.
Some lawmakers have touted the program as the first of its kind in the country.
About 28 percent of the estimated 5,513 homeowners who are eligible for the program have applied for mediation, and 361 people have reached a settlement that allowed them to keep their home. Another 116 homeowners decided to leave their home but were able to reach an agreement with their lender to pay off the balance of their mortgage. Mediation remains unsettled in 203 cases.
“All of us familiar with the program would like to see more people participate,” said Ann Parent, an attorney for the Connecticut Fair Housing Authority. “We don’t know why more homeowners aren’t requesting mediation, but we feel like more should.”
Parent said she supports the program and agrees that it is serving an important purpose, especially for homeowners who can’t afford a lawyer to guide them through the foreclosure process. At the same time, however, she said it’s unfortunate that less than 30 percent of eligible homeowners are using it.
MINNEAPOLIS (AP) — Wal-Mart Stores, the discount retail giant, will pay up to $54.25 million to settle a class-action lawsuit that accused the company of cutting workers’ break time and allowing employees to work off the clock in Minnesota.
The class includes about 100,000 current and former hourly workers who were employed at Wal-Mart Stores and Sam’s Clubs in Minnesota from Sept. 11, 1998, through Nov. 14, 2008.
Wal-Mart has also agreed to maintain electronic systems, surveys and notices to stay compliant with wage and hour policies and Minnesota laws.
In July, a Dakota County judge ruled against Wal-Mart in the lawsuit, saying the retailer, based in Bentonville, Ark., violated Minnesota state labor laws two million times by cutting worker break time and “willfully” allowing employees to work off the clock. Court proceedings had been scheduled for next month to determine punitive damages.
Excerpt and video below but a reading of the entire post is a must for anyone looking for reasons to believe that we can reach one another across political, cultural, religious, social and economic divides.
The music develops by a process of answer and call. One of them plays a riff, or a short section of music, which is then followed by the other. They react to one another responding to and developing upon the riff they have just heard. By doing so they produce this amazing music in a memorable scene that is part of cinema folklore.
It represents a rare moment of optimism in what is an otherwise unbearably dark, oppressive film.
In the process of exchanging these riffs the protagonists are effectively collaborating. They are communicating. We can see their riffs as an analogy for talking. The riffs work where the spoken word does not. Drew and the Banjo boy clearly develop and enjoy a relationship while they are playing.
If you’re a beginning female entrepreneur or a women who is thinking about starting in business for herself, you have found your tribe. You have arrived at a safe place to talk about business. Especially if you are 35-55 years old, you are going to love this site because that’s a magic age time. You really discover who you are during those years and finally decide to do what you love instead of just what you’re “supposed” to do. The spirit of that revelation and all the promise it holds is why this site was created.
So let us begin anew -- remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.
Let both sides, for the first time, formulate serious and precise proposals for the inspection and control of arms, and bring the absolute power to destroy other nations under the absolute control of all nations.
Let both sides seek to invoke the wonders of science instead of its terrors. Together let us explore the stars, conquer the deserts, eradicate disease, tap the ocean depths, and encourage the arts and commerce.
Let both sides unite to heed, in all corners of the earth, the command of Isaiah -- to "undo the heavy burdens, and [to] let the oppressed go free."
And, if a beachhead of cooperation may push back the jungle of suspicion, let both sides join in creating a new endeavor -- not a new balance of power, but a new world of law -- where the strong are just, and the weak secure, and the peace preserved.
All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days; nor in the life of this Administration; nor even perhaps in our lifetime on this planet. But let us begin.
When I read accounts like the one below, I always ask myself, "what trespasses have I suffered that would permit me not to forgive?"
As she sat in her boyfriend’s car, a young Texas woman named Dee Dee Washington was shot and killed — an innocent bystander of a drug deal gone bad. For 14 years, the man who fired the shot, Ron Flowers, never admitted to killing her — not until, that is, Ron was admitted to the InnerChange Freedom Initiative® (IFI), the prison program launched by Prison Fellowship in Texas.
IFI applies principles of restorative justice by confronting offenders with the harm they have done to their victims. During one of IFI’s Victim Awareness sessions, Ron finally admitted that he did commit the murder, and he prayed that his victim’s family would forgive him. He wrote a letter to Dee Dee’s mother, Mrs. Anna Washington, expressing his repentance and deep remorse.
For her part, Mrs. Washington had written angry letters every year to the parole board, urging them to deny Ron parole. But when Ron confessed, Mrs. Washington felt an overwhelming conviction that she should meet the man who had killed her daughter.
Prison Fellowship staff carefully prepared Mrs. Washington and Ron for the meeting. Mrs. Washington finally could ask the questions that virtually every victim wants to ask: “Why did you do it?” “How did it happen?” Ron reassured her that her daughter was not involved in the drug deal. As Ron told her about the day that he killed her daughter, Mrs. Washington took his hands in hers and said, “I forgive you.”
I was in Houston for Ron’s graduation from IFI. As Ron crossed the stage to receive his diploma, Mrs. Washington rose from her seat and walked over to embrace Ron, the man who had murdered her daughter. She then told all of us in the audience, “This young man is my adopted son.”
People who are joined together by a dispute -- which includes everyone engaged in litigation and their attorneys -- are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call "the defendant."
If we are the defendant, we will universally attribute the series of events resulting in the injured party's loss to the circumstances causing Plaintiff's harm (or, of course, to the Plaintiff's evil intentions).
The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think. It is an attribution error because it attributes effect to a particular type of cause. It is error because all human activity and the inevitable conflicts that arise from it
"take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu."
In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance. We are the cause and the effect of everything that surrounds us and everything that we surround.
How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them? I could give you more explanations from the field of social psychology or I could simply tell you a story. In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we're told, introduces us to Bill Gatesas
a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.
At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.
Thanksgiving Day begins a season that reminds many of us that our earliest negotiation experiences were those with our family.
When I was a child, these were the issues on the Thanksgiving bargaining table
Who gets to snap the wishbone (does anyone do this anymore?)
Who gets to sit next to gramma
Who sets the table and who does the dishes
Whether my sister and I have to eat what we don't like (me cranberry sauce; she vegetables of any kind) to "earn" a piece of pumpkin (my sister) or pecan (me) pie
Later, in adolescence, the issues changed
must I follow the parental injunction not to talk about civil rights, pre-marital sex, world poverty, and, the Viet Nam War ALL DAY long
do I have to change out of my blue jeans, workshirt and desert boots for dinner
may I have two Thanksgivings - one with my father & one with my mom & step-dad
MUST I be nice to my sister's new husband
and, of course, who sets the table and who does the dishes (some things never change)
Still later, when my sister and I had married and moved out of town
whose table would we gather around for the holidays: mom's, mine or my sisters
how to accommodate the newly vegetarian in the family
could I skip Thanksgiving in San Diego in exchange for Christmas there (without my mother bursting into tears)
and, of course, who sets the table and who does the dishes
Thanksgiving is my own favorite holiday because there are no gift-giving obligations; everyone (more or less) celebrates the same holiday regardless of religion or national origin; there is no limit on the amount of cream and butter that can be consumed at a single sitting; and, everyone is expected to express gratitude rather than complaint.
Not everyone, however, is lucky enough to have family or even friends with whom to gather for Thanksgiving. I have had these times in my own life, when Thanksgiving is a particularly forlorn and isolating day. It's never mattered to me whether I was economically secure or poverty stricken on Thanksgiving. What mattered were those Thanksgivings when I had no family with whom to gather and no friends with whom to share a holiday meal. For those whose lack of family arises from outright rejection (many young gays in West Hollywood or throw-away kids on the streets of Hollywood) there are few days of the year that are more wrenching.
For the lonely and the forlorn this Thanksgiving, I'm posting the following resources and adding this: not just the good, but the bad is fleeting as well.
Around here, public officials and celebrities pretty much have the T-day soup kitchen duties cornered. Don't despair if all of the opportunities to serve dinner on T-day are taken; there is much else you can do to be of service to those less fortunate than you.
If you're in recovery in the Los Angeles area, I have good news for you. Many of the daily 3,000 local meeting groups have 24-hour meetings over the Thanksgiving weekend and many serve Thanksgiving dinner. Check the local directory (here) for a meeting near you (the national meeting finder is here).
Those who are already trained to answer telephones at the L.A. Central Office might give Harvey a call and volunteer to serve as the saving voice on the other end of the telephone during hard to cover hours such as the midnight to dawn shift. The most recent issue of Hello Central (here) notes that the
Los Angeles Central Office continues to be in need of volunteer telephone workers. The only requirement is a minimum of one year sobriety. We need people who will show up when they say they will. Contact Central Office: (323) 936-4343, and ask for Harvey or Langston.
My husband returned from our local farmers market the other day with the story of a woman in line who was making an entire Thanksgiving dinner just for herself and seemed cheerful about it. Now there's a woman who's made peace with her life. For those who might find the solo T-day dinner a tiny bit depressing, you could cook up dishes for others. Here are some organizations to which you could be of service in that way.
CONFIDENTIALITY QUESTION HEADED BACK TO TRIAL COURT By Greg Katz
LOS ANGELES - The state Supreme Court has denied review of an appellate decision that had become a cause celebre for mediators concerned about confidentiality precedents.
Instead, the case will head back for a new trial that includes a dispute over whether a hand-drawn chart, created in a probate mediation and initialed dozens of times by the parties, should have been admissible as evidence.
A trial court had said that it was not, but the 2nd District Court of Appeal overturned the decision, saying it was in effect a settlement agreement and admissible under Evidence Code Section 1123(c). Thottam v. Thottam, B196933 and B196934 (Cal App. 2nd Dist., filed Sept. 3, 2008).
Many mediators expressed concern that the appellate ruling hurts mediation confidentiality by making draft documents admissible, and the case drew amicus letters from pro-ADR lobbying group California Dispute Resolution Council and others.
But the high court Wednesday denied review.
Tyna Orren, who won the appeal for Los Angeles-based attorney and political activist Peter Thottam, said she was happy but unsurprised that the court didn't take up the case.
"The reason mediators don't need to be concerned is that the opinion now tells them precisely what they need to do to avoid what happened in Thottam. Nobody should sign anything which leaves an opening for anything to be divulged," she said.
The 2nd District panel reasoned that the document appeared to be a settlement agreement, and that the parties had signed a premediation agreement allowing for the admissibility of mediation evidence that supported any agreements reached. That qualified the document for an exception in mediation confidentiality statutes.
"Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain," making it a settlement agreement, Presiding Justice Norman L. Epstein wrote for the unanimous panel.
Justices Thomas L. Wilhite Jr. and Steven C. Suzukawa joined in the opinion.
Beverly Hills-based mediator Victoria Pynchon, who closely followed the case, said it was more about interpretation of the mediation agreement than about confidentiality, that the Supreme Court has vigorously defended the state's confidentiality laws in the past.
Attorneys should rely strictly on those laws when drafting mediation agreements, she said. "Just quote the statute or refer to the statute. Don't get fancy."
Stephen L. Kaplan of Laguna Niguel's Hicks, Mims, Kaplan & Burns, who had petitioned for review, said he was disappointed but expected that the new trial would go in favor of his clients, as the first one had.
The only difference: "There'll be one more piece of evidence," Kaplan said.
A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.
The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.
The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.
Sometimes your business or professional negotiation has to take place in Court. This is an example.
Still active is Molski's case in the Eastern District of California which was recently permitted to go forward by the same Ninth Circuit Court of Appeal. As the Ninth Circuit explained the factual background of Mr. Molski's "serial litigation,"
[Plaintiff] Molski and his lawyer Thomas Frankovich (“Frankovich”) were purportedly in the business of tracking down public accommodations with ADA violations and extorting settlements out of them. On cross examination, Molski acknowledged that: he did not complain to any of [the defendant's] employees about his access problems; he had filed 374 similar ADA lawsuits as of October 8, 2004; Frankovich had filed 232 of the 374 lawsuits; even more lawsuits had been filed since that date; Molski and Frankovich averaged $4,000 for each case that settled; Molski did not pay any fees to Frankovich; Molski maintained no employment besides prosecuting ADA cases, despite his possession of a law degree; Molski’s projected annual income from settlements was $800,000;2 Molski executed blank verification forms for Frankovich to submit with responses to interrogatories; they had also filed lawsuits against two other restaurants owned by Cable’s; they had filed a lawsuit against a nearby restaurant; and Sarantschin obtained up to 95% of his income from Frankovich’s firm for performing investigations for ADA lawsuits.
Despite these apparently damning facts, in its 2007 affirmance of the vexatious litigant finding, the Ninth Circuit noted some of the reasons why Molski and his lawyer could not be condemned for their pursuit of serial ADA litigation. The ADA, noted the Court,
does not permit private plaintiffs to seek damages, and limits the relief they may seek to injunctions and attorneys’ fees. We recognize that the unavailability of damages reduces or removes the incentive for most disabled persons who are injured by inaccessible places of public accommodation to bring suit under the ADA. See Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 U.C.L.A. L. Rev. 1, 5 (2006).
As a result, most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter of course. See De Long, 912 F.2d at 1148 n.3. For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individ- uals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.
But as important as this goal is to disabled individuals and to the public, serial litigation can become vexatious when, as here, a large number of nearly-identical complaints contain factual allegations that are contrived, exaggerated, and defy common sense. False or grossly exaggerated claims of injury, especially when made with the intent to coerce settlement, are at odds with our system of justice, and Molski’s history of litigation warrants the need for a pre-filing review of his claims. We acknowledge that Molski’s numerous suits were probably meritorious in part—many of the establishments he sued were likely not in compliance with the ADA.
On the other hand, the district court had ample basis to conclude that Molski trumped up his claims of injury. The district court could permissibly conclude that Molski used these lawsuits and their false and exaggerated allegations as a harassing device to extract cash settlements from the targeted defendants because of their noncompliance with the ADA. In light of these conflicting considerations and the relevant standard of review, we cannot say that the district court abused its discretion in declaring Molski a vexatious litigant and in imposing a pre-filing order against him.
In other words, when the legislature puts the enforcement of the ADA in the hands of disabled individuals without permitting them to recover damages, you can't blame private attorneys for working the market created for the private enforcement of public laws even if you can blame them for the manner in which the market is worked.
So what does this have to do with the settlement of litigation and, in particular ADA Litigation?
Because these accessibility cases always cost more to defend than to settle and because they're often indefensible, the rational business decision is simply to settle the darn things.
No one, however, wants to be extorted. And in the few ADA cases I've mediated, it's the principled refusal to pay money at the point of a gun that interferes with a business establishment's willingness to do the economically "rational" thing rather than, say, try it; appeal it to the Ninth Circuit; and, pursue it to the Supreme Court of the United States.
For those representing defendants who are feeling extorted, I offer my own (previously posted) ADA mediated settlement story below.
Some attorneys and mediators make light of the power of the apology ("it's only about money"). My education, training and experience consistently suggest otherwise.
Today, we learn a lesson in heart-felt apology from Larry Bodine for a post I hadn't seen, but which Bodine himself admits was anti-Semitic.
"Elevator Pitch" Post Deleted I sincerely apologize for the crude and offensive "Elevator Pitch" post I put online last week. In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart.
If you read on here you'll see that Bodine did not simply say "I'm sorry." He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story.
Words that heal include expressions of caring, concern, gratitude and affirmation. [I]n demolishing the walls of hostility, we must be prepared to examine our own pattern of spoken words and embrace the practice of ethical speech. . . .
Because Bodine himself admitted the anti-Semitic nature of his post, it falls into the category of an identity-based conflict with some or all of his readers. Though speaking from a religious or "faith-based" viewpoint, I always found Cox' prescriptions for resolution to work equally well from the point of view of secular humanism. As Cox explains:
A faith-based reconciliation framework applied to an identity-based conflict . . . consists of six basic elements: imparting moral vision, building bridges between estranged groups, a peace accord, advocacy for social justice, political forgiveness, and healing deep collective wounds.
More particularly, Cox recommends the following specific steps:
1. Sharing life journeys and building common ground.
2. Sharing perceptions of the conflict.
3. Engaging in problem solving.
4. Sharing how one has caused offense to the other.
5. Exploring each community's narrative of history and perception of historical wounds.
If you read Bodine's spontaneous apology, you will see all of these elements contained in it. This is not surprising because apology and attempts to re-build interpersonal bridges are hard-wired into us as toddlers. As I wrote in "Shame by Any Other Name,"
Shame . . . "acts as a powerful modulator of interpersonal relatedness and . . . ruptures the dynamic attachment bond between individuals." 30 When an individual has broken this bond, he wishes to recapture the relationship as it existed before it turned problematic. 31 Toddlers shamed by their mothers, for instance, naturally initiate appeals to repair the momentary break in the emotional bond resulting from the shame-inducing behavior. 32 This process is called self-righting. 33 It is natural and universal. 34 The shamed toddler reflexively looks up at and reaches toward his mother. 35 Even a preverbal child will spontaneously express this need to be held in an attempt to reaffirm both self and the ruptured relationship, to feel restored and secure. 36
A healthy and responsive mother accepts and assuages the child's painful feelings of shame, enabling the toddler to return to a normal emotional state, one in which love and trust are ascendant. 37 If the caregiver is "sensitive, responsive, and emotionally approachable," especially if she uses soothing sounds, gaze and touch, mother and child are "psychobiologically reattuned," the "interpersonal bridge" is rebuilt, the "attachment bond" is reconnected, and the experience of shame is regulated to a tolerable emotional state. 38
This may all seem excessively academic. The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm) and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.
And for that lesson, we owe thanks to Larry Bodine this evening.
I have recently been asked by several lawyers to write a few posts on mediation and negotiation terminology not only because some attorneys are unfamiliar with these terms, but also because different mediators and negotiators use them to mean different things.
Mediators, lawyers and negotiators who read this post are invited to add, correct, object, or suggest further refinements and to add their thoughts on further strategic and tactical uses and perils of the impasse-busters we discuss today - the bracketed offer and the mediator's proposal.
And because my readers may find this post as dry as bones, I once again offer the X-rated "Negotiation Table" as pretty #%$@ true and funny (think Ari Gold).
Bracketed Offer: Party A makes an offer to bargain in the zone he wishes to see the negotiation move to. This is often used when neither party wishes to step up to the line of probable impasse and it can also be used to re-anchor the bargaining zone. Quite simply, Party A offers to bargain in the range of, say, $2 million and $3 million. He offers to put $2 million on the table if party B is willing to put $3 million on the table, i.e., "I'll offer to pay you $2 million if you'll offer to accept $3 million to dismiss your suit."
If party B does not accept the bracket, party A will not be "stuck" with having actually placed $2 million on the table when the next exchange of offers and counter-offers begins.
Responding to a Bracketed Offer: Party B can: 1. respond with a counter-bracket, i.e., I'll make an offer to accept $3.5 million in settlement if you'll put $2.5 million on the table; or, 2. refuse the bracket and ask for an unbracketed counter.
The basics: the mediator chooses a number for the parties, making an "offer" to settle for, say $2.3 million which the parties are free to accept or reject. It is a double-blind "offer." If either party rejects the "offer" neither party knows whether the other accepted or rejected. Acceptances are communicated only if both parties accept, in which case they have a deal.
The circumstances: The parties should seek a mediator's proposal only when they have reached a hard impasse. A hard impasse exists when both parties have actually put their true bottom line on the table or their next to the bottom line and they see no hope of it closing the deal.
The purpose: Both parties believe they could convince their principal to accept a deal that is more than they wanted to pay or less than they wanted to accept, but they cannot convince their principals to put $X on the table or accept $Y. They hope to use the authority of the mediator to sell the deal to their principals. If they are the principals, they are willing to settle for a number lower or greater than planned but not willing to close the bargaining session having made such a concession, which would have the effect of setting the floor or establishing the ceiling of all future bargaining sessions.
The Mediator's number: I do not know whether there is a general practice among mediators about how they choose the number proffered. When parties ask me to make a mediator's proposal (I rarely recommend one in the first instance) I explain my practice as follows: When I make a proposal I am not acting as a non-binding arbitrator or early neutral evaluator. In other words, my proposal is not a reflection of the value of the case. The number I propose will be a number that I believe the Plaintiff is likely to accept and the Defendant is likely to pay.
In rare instances, the parties wish to continue bargaining in the event a mediator's proposal is not accepted by both parties. I have permitted this in a few circumstances after explaining to the negotiating parties that it often causes resentment on the other side because they feel as if the party who wishes to continue negotiating is unfairly attempting to use the mediator's number as a new bench-mark from which to bargain.
I highly recommend against continued bargaining after the rejection of a mediator's proposal on the day of the mediation. It should serve as a hard stop because the parties respond to it as an ultimatum. That's part of its power. Take it or leave it.
Just as you would not continue bargaining after indicating that you were putting your last dollar on the table, you should not continue bargaining (during that session) after the mediator has, in effect, put both parties' anticipated bottom lines on the table for them.
First she's all about the election and now she's back to post-mid-Century America's gender wars? Say it ain't so, Vickie!
These are just statistics from an extremely limited sample that tells more about this particular program in this particular place concerning the particular types of cases being mediated than they are about the relative abilities of male and female mediators.
I'm unaware, however, of any controlled studies on gender differences in mediation results. I do know that there's a gender imbalance in the profession and have had panel administrators acknowledge on the QT that even when they're choosing mediators or settlement officers pro bono lawyers tend to choose men most of the time.
So for women struggling in the profession, here's your moment of zen.
Examining the graphical representation of mediator gender and settlement rates, one can see that there are male mediators who settle cases at higher than average rates, as well as female mediators who settle cases are lower than average rates. Nevertheless, it appears that most of the popular mediators who settle cases at higher than average rates are women, while the majority of popular mediators who settle cases at lower than average rates are men.
Some may object to this “battle of the sexes” analysis on the grounds that men and women should be treated as equals. Based on our data, however, male and female mediators are not statistically equal with respect to the rate at which they settle cases. Whether this “good” or “bad” is more a matter of philosophy than statistics.
In her book In a Different Voice, Carol Gilligan described how men and women think about moral conflicts differently. Her research suggests that men tend to consider conflict in terms of rights while women generally view conflicts in terms of dynamic relationships. Accordingly, a “female” approach to conflict resolution may be better suited to the process of facilitating mediated settlements than a “male” approach to conflict.
When I think of my own experience as a neutral for the past four years and compare it to my experience as an attorney in the first four years of my practice 1980-1984, I can only say that it is somewhat similar.
What made the difference in the years that followed? Women flooding the profession. As women litigators and bench officers begin to retire, I suspect that we'll begin to see greater use of women neutrals. And no, I do not believe that the paucity of women on commercial mediation panels nor what I believe to be their greater struggle to build a thriving practice there is based upon conscious sexism.
Like the tendency to prefer judges over attorney mediators (a preference I believe to be waning) I believe that the sub-conscious preference for male over female mediators arises from a continuing misunderstanding among members of the bar about what settles cases. Too many attorneys continue to believe that they need a mediator who can overpower the will of their adversary. And if you're looking for raw power (particularly the power of authority) in American commerce and law, you will naturally choose the judge over the attorney and the man over the woman.
I haven't written about this in the past because it is a topic that tends to divide people and it is not my intention to start a tiny gender war in the tiny world of mediation.
But when these statistics started pouring into my in-box, I couldn't ignore the topic any longer.
Since all four of us are frequent flyers, a lively discussion ensued about ways the airlines could deliver entertainment at lesser cost.
Sean's life-partner, the rocket scientist, Tony, wasn't chiming in as usual. Only when the conversation flagged did we notice that he had one of those "I'm about to invent something" looks on his face.
"You know," Tony finally offered, chopsticks hovering in mid-air, "producers ought to offer unreleased movies to U.S. Air in exchange for the airlines making willing passengers available as focus groups. U.S. Air would be able to offer its passengers something better than the other airlines -- movies that haven't hit the theaters yet - and the production companies would probably pay the airline a fee for the focus group service."
This is why people say this or that doesn't require you to be a rocket scientist. These are the types of innovative solutions Tony calls up daily on a moment's notice. His take-out dinner proposal was what negotiation gurus are talking when they suggest that bargaining parties use their negotiation for the purpose of creating value.
having created new value, negotiators must still divide the resulting goods. Unfortunately, the competitive strategies used to claim value tend to undermine the cooperative strategies needed to create value. The exaggeration and concealment needed for effective competition is directly opposed to the open sharing of information needed to find joint gains. Conversely taking an open cooperative approach makes one vulnerable to the hard bargaining tactics to a competitive negotiator.
O.K.,Solo Practice University™ is not Santa Claus but it comes pretty darn close.
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Need to transform your marketing strategy in these troubled economic times? You can learn not just how to blog your way into your desired market, but how to leverage what you love into how much you make from Blawgfather and SPU Professor Grant Griffiths.
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Are your clients peppering you with questions you can't answer about their rights and remedies in Cyberspace? Then it is Christmas, Hannukah and Kawanza all rolled up into one. Brett is a patent attorney and frequent national speaker on internet and intellectual property law. Professor Brett Trout is teaching a course on intellectual property in cyberspace.
Whether your presence in Cyberspace is solo or in connection with a group practice, let SPU Professor Stephanie L. Kimbo help you hang out your virtual shingle.
Don't yet know your way around the courtroom? Thinking of adding criminal defense to your practice as a growth industry in troubled economic times? Need to ask questions of a seasoned trial attorney that would make you feel inadequate to ask of your supervising attorney in the PD's office? There's no better winter holiday gift than SPU Professor Scott Greenfield's semester-long course “The Practice of Criminal Defense - The Road to Perdition.”
Still waiting to take that first deposition? Taking your 20th and can't stop worrying that the Court Reporter thinks you're just a tiny bit pathetic? Don't know how to deal with obstreperous opposing counsel? Afraid to run a line of killer cross-examination to re-position your case for summary judgment or settlement? Wish you'd gotten the expert to admit that he'd consider the moon to be green cheese if his attorney had told him to assume it? (yes my partner did).
[T]he fact that the settlement was reached during mediation to which Evidence Code section 1119 applies does not eliminate the court’s obligation to evaluate the terms of the settlement and to ensure that they are fair, adequate and reasonable. If some relevant information is subject to a privilege that the court must respect, other data must be provided that will enable the court to make an independent assessment of the adequacy of the settlement terms.
[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. (Evid. Code, § 1120 [“Evidence otherwise admissible or subject to discovery outside of a mediation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . .]; Rojas v. Superior Court (2004) 33 Cal.4th 407, 417; Wimsatt v. Superior Court(2007) 152 Cal.App.4th 137, 157-158.)
Foot Locker’s payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.
* * *
Following the opportunity for limited discovery, the trial court should redetermine whether the proposed settlement is fair, adequate and reasonable. The court may and undoubtedly should continue to place reliance on the competence and integrity of counsel, the involvement of a qualified mediator, and the paucity of objectors to the settlement. But the court must also receive and consider enough information about the nature and magnitude of the claims being settled, as well as the impediments to recovery, to make an independent assessment of the reasonableness of the terms to which the parties have agreed.
We do not suggest that the court should attempt to decide the merits of the case or to substitute its evaluation of the most appropriate settlement for that of the attorneys. However, as the court does when it approves a settlement as in good faith under Code of Civil Procedure section 877.6, the court must at least satisfy itself that the class settlement is within the “ballpark” of reasonableness. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)
While the court is not to try the case, it is “ ‘called upon to consider and weigh the nature of the claim, the possible defenses, the situation of the parties, and the exercise of business judgment in determining whether the proposed settlement is reasonable.’ ” (City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 462, italics added.) This the court cannot do if it is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.
By remanding we do not suggest that the proposed settlement ultimately may not pass muster. We hold only that the trial court may not finally approve the settlement agreement until provided with sufficient information to assure itself that the terms of the agreement are indeed fair, adequate and reasonable.
This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills. If you can take the time, your entire practice will benefit from the experience.
What did I learn on the campaign trail? Other than breaking a lifetime phobia of the cold call I re-learned what I already knew from my mediation training and experience:
share stories (not opinions)
look for similarities rather than differences
listen with a compassionate heart
remember that behind every accusation and stated fear is a plea for help
create/expand common ground
be respectful of other people's point of view
assist people in making new or different decisions only when they ask for it
It was hot, really hot, trudging the blacktop separating dozens of apartment buildings in Henderson, Nevada the day before the election. We volunteers had lists of people who were probable Obama supporters, but many of whom wavered back and forth between McCain and Barack. If the person at the door said s/he was voting for McCain, I wished their candidate luck and moved on. We were getting supporters out to vote, not trying to convince McCain voters to change their minds.
(campaign headquarters, Henderson, Nevada)
I probably looked pretty dissheveled and blown out from the heat when, shortly after noon, I knocked on the door of Building 12. A gray-haired caucasion sixty-something woman in a faded house coat opened the door; an African-American boy around 10 clinging to her side.
"I just decided last night to vote for McCain," she said, but she didn't close the door. I was about to wish her candidate "good luck" when she said "my son keeps trying to talk me into voting for Obama but he scares me." She didn't appear to be asking me to go my way.
"Are you worried about national security," I asked, as the kid drifted back to the television set in the darkened living room.
"No, no," she laughed, "I just think he must hate America. I'm concerned about health care and education -- you know -- I was a foster child from the time I was two years old -- but that Michelle, she seems like a radical to me."
"I'm concerned about health care myself," I replied, telling a story about one of my husband's former partners who, in the wake of his law firm's collapse, facing imminent surgery for a recently diagnosed cancer" is suddenly without insurance coverage. With a pre-existing condition. "Just what Obama's mother had to worry about when she was dying of cancer," I said, "whether her health insurance would cover her medical bills because her carrier was claiming she had a pre-existing condition."
Sheila, that was her name, clucked her tongue, and talked again about what it was like growing up without parents.
"Barack had it slightly better than you," I acknowledged, "he had a mother."
"And grandparents," she quickly added. "That's a family. He had a family. It makes all the difference in the world."
We talked more about her childhood - her alcoholic mother and father; her father's refusal to identify her own grand-parents for the foster parent agency under whose jurisdiction she spent her difficult childhood. I told her how my dad had left us when I was nine, but also how he'd gone from high-school drop-out to attorney and finally judge because that was the kind of opportunity America offered and continues to provide.
We'd nearly come to the end of our chat when Sheila asked me how I'd become a lawyer with just a single parent. "Grandparents," I'd responded, smiling, glancing in at her foster son, to whom she could only rightly be called a grandmother at her age.
And why was I going door to door for Obama in this heat, she finally asked, leading me to tell the story of my own early grass-roots activism; my service with Vista, the American Peace Corps, during the "second wave" women's movement in the early 1970's.
And then, for no reason I can put my finger on I added, "those experiences and 15 years of sobriety." She lit up then. "I'm a friend of Lois'" she allowed -- the politely "anonymous" way to say she's a member of Alanon.
"Darn you!" she said, "now I'm going to change my mind again and vote for Obama. Can't wait to tell my son that someone finally convinced me."
Funny, but I wasn't really trying to convince her of anything. We were women talking over the fence after hanging our laundry or putting our kids to bed. We connected. We had personal history in common with one another and with candidate Obama. We had shared goals and dreams.
Here's the thing. You can't make this stuff up and you can't pursue this type of communication for the purpose of changing someone's mind. But if someone implicitly asks for your assistance in making an important decision, and if your goal is to help them make their decision instead of the decision you want them to make, you will, at a minimum, create common ground. And once you've done that, you can accomplish something constructive together, whether that accomplishment is what you had in mind in the first instance or not.
This is what living serenity means. You commit to your goal with all of your heart and passion but in doing so yougive up achieving the result in favor of helping others empower themselves to make the decision that is right for them.
This is what we mean when we pray: god grant me the serenity to accept the things I cannot change;
the courage to change the things I can; and, the wisdom to know the difference.
I don't know if Sheila voted for my candidate or not and frankly I do not really care. I believe that each authentic human connection possesses potential for the transformation of all human experience and that transformation is beyond my ability to imagine.
And that is what I learned and re-learned on the campaign trail. I'm hoping -- and will work toward -- an American future with even greater compassion, authenticity, hope and action than I have already been privileged to live.
Remember that Heller Ehrman collapse? Seems that you don't get COBRA benefits if the health plan your former employer maintained is kaput because it has gone out of business.
Now think, pending surgery, no health insurance, pre-existing condition.
Why do I lead a post about resolving work-place conflict with bankruptcy and tragedy? Because no 100-year old AmLaw100 firm fails so spectacularly without having made some conflict resolution mistakes.
Can you eliminate conflict in the law firm? Hellllloooooooooooooooo??????????? We're lawyers who Anne Reed at Deliberations this morning reminds us have been characterized as . . . well . . . sharks with
skin that is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.
What to do? Apologize when your "denticles" abrade passersby, but more importantly, ask yourself the most important Bob Sutton-inspired organizational wellness question noted over at The Non-Billable Hour this morning:
Empathy is not only a central tool In conflict resolution, but also a way of being. And yet I remember that when I started in my first mediation course I was unsure of what it was. It even took a while to learn the difference between empathy and sympathy. In my search for a definition I encountered an old joke that I often now use to start a discussion on empathy.
There was a rich woman who wanted to have her portrait painted by a famous young artist. She called the artist to her mansion and instructed him that she would like her portrait to be painted with empathy. The young artist arranged for her sittings and commenced the work. He would not let her see the painting until it was completed as he rejected any artistic intervention. Finally the day came for the unveiling. The family gathered round. The artist pulled back the cover. And there was a gasp from the assembled group. The portrait was magnificent, however there was a man standing behind the rich woman with his hand over her shoulder and stuck down the front of her dress. The rich lady gasped, composed herself and said ’Young man, what is the meaning of this?’
The artist replied ‘Ma’am, I must confess that when you asked me to paint your portrait with empathy, I did not know what empathy was. So I looked it up in the dictionary and the definition said ‘A fellow feeling in one’s bosom’.
Indeed! A fellow feeling in one’s bosom is a fine definition of empathy if a little ambiguous.
Having come up with a definition I still then had a tremendous amount of difficulty learning how to actually achieve this ‘fellow feeling’. I would find myself at the mediation table with the parties whining at each other over some trivial matter (when compared to life, death and global warming) and I would be sitting there thinking ‘Get a life buddy. Stop whining’. At the same time I would be saying “That must have been really difficult for you to go through that experience”
“Yeah! So right dude” would be the reply as the party felt heard.
It is amazing how the mechanical tools of mediation work even without the feeling. I called it ‘mechanical empathy’. After each mediation I would write up a self evaluation and each time for several years I would comment to myself on my lack of empathy. After all if I had walked a mile in his shoes, maybe I would be whining just as much. (Or as the old joke goes, I would at least have his shoes and he would be a mile away). This was my burden (not a very heavy one, I give you), humour kept overcoming empathy. It may be a British thing, my heritage I thought. Crack a joke whenever an emotion looks like taking over.
My mediation mentor once told me that I had the emotional development of a 2 year old. When I recounted this to a group of women students they replied that they would have given me 12 years old and that’s about average for a guy!
So how to get from an EQ of a 2 year old to the ability to experience the real empathy that is the hallmark of a successful mediator and indeed a successful human being?
In a word ‘listen’. That’s really the whole story. Just listen. Shut up and listen. Keep your opinions to yourself and just listen. Gradually it becomes a habit. Gradually you even understand what you hear. Gradually as you really begin to hear, respect grows. This can be difficult at times especially if someone is shouting and using abusive language. However in the act of active listening the talker (or shouter) is calmed.
A few years ago during a mediation I experienced two parties transform from hissing in anger at each other to reconciliation in a moment. The trigger was an apology. Much has been written on the power of apology and it is indeed one of the most powerful forces for transformational good. The experience led me to look for other triggers that might cause transformation. Silence and humour and tears all have power.
This search led me to explore some of the links between mediation and human spirituality. I learned to meditate using the Vipassana tecnique. The ability of meditation to loosen the ego’s grip became a powerful tool to prepare myself for mediation sessions. The fact that a single letter separates meditation and mediation seemed somehow prophetic. I learned an ancient learnable skill called Metta Bhavana. This loosely translates as ‘Loving Kindness’ and is practiced by the conscious projection of good will.
One day as an unsuccessful mediation was winding up and I was preparing to send the parties out into the unresolved world with at least some encouragement about the good work that they had done in the mediation. I lent forward with good intent and focused body language and said
‘You know, I really feel for both of you. This conflict does harm equally and I feel badly that you have been unable to come to a resolution today. I do however believe that both of you made significant efforts to get to a solution and that you each understand better what motivates the other. And so as you leave please feel easy on yourselves and know that the work that you did here today was good work and may help you reach a solution soon.'
There was a silence. The energy between us all was real and intense. It was like a hug between warring relatives at a family funeral. Then they sat back down and quickly settled. I was amazed.
I tried the same kind of focused good will in other mediations and always found that it moved the parties forward. I continued my research into the roots and practice of the process. The Magi who traveled to be at the birthplace Jesus did so saying “Peace on Earth and good will to all.” They practiced this ancient skill of Metta Bhavana, the conscious projection of good will, compassion and loving kindness. The term ‘Pax Vobiscum’ in the Catholic liturgy is an expression of the practice.
Metta Bhavana is a five-stage skill that can be learned. The first stage is to think of yourself in a kind and loving way. This thought can then be extended to a person who you like. The third stage is to think of a neutral person and the fourth and perhaps most difficult stage is to project loving kindness (peace and good will) to an enemy or difficult person. The final stage is to expand the projection of good will to all. There are many courses in the process often associated with Buddhism. There are even do it yourself web sites with exercises to teach Metta Bhavana.
The success I experienced with this technique made me want to share it with other mediators. I sent an abstract for a workshop to a conflict resolution conference and presented the technique to those who were interested. The workshop was well received. The same desire to share my experience led me to write this article. I am beginning to believe that perhaps you need no other tools. If you can enter a space with absolutely zero judgment and project loving kindness the space will shift magically and to the benefit of those in it. Indeed the word ‘magic’ is derived from the Magi.
The abstract for the course was Magic in Mediation
Role playing and case study of the use and impact of the transformational techniques that can literally move the participants through the looking glass into places that they never thought possible. There are many definitions of the nature of magic but I return to the techniques used by the followers of Zoroaster, the Magi, who were able to turn events to advantage by the conscious use of well intentioned will power. Compassion and Loving Kindness (Metta Bhavana) are the central tools. While these tools are useful to practitioners they are of course also central to a successful life.
This article has grown out of this workshop presented at the Conflict Resolution Network conference ‘Cultivating Peace’ in Winipeg, Canada in June 2006.
Martin Golder is a mediator, arbitrator and architect living in Victoria, British Columbia, Canada
The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can "win."
Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections. Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff's case, leading to an unbridgeable divergence in the two sides' valuation. On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.
If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they agree on and what they disagree. Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement.
Make Sure The Money Person Is There
I will no longer attend a mediation unless the individual authorized to write the settlement check is present. None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only. It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight? This information usually tells me volumes.
Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins
Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic. On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle.
All of us sometimes have unrealistic expectations. I certainly can, as can defense counsel or the corporate representatives. The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.
If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.
The lawyers' job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients. Ensure that the mediator you’ve agreed to will do this.
Before The Mediation Set A Time Limit For Real Progress
This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave. What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.
By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.
Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.
One Size Does Not Fit All
As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me. I hope that you find them useful as well. Happy mediating.
About The Author
Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.
After eight years of catastrophic Republican misrule—in the midst of economic crisis and rising unemployment, in a nation plagued by ruinous energy costs and inflation, bank failures, and staggering public and private corruption—an eloquent, charismatic, intelligent Democratic candidate was locked in a statistical tie with a doddering old hack whose primary argument for his claim to the most powerful office on earth is that he was shot down over Vietnam and tortured for five years. Indeed, this remained the case even after McCain demonstrated beyond all doubt, in his impetuous selection of a ludicrously unsuitable vice- presidential candidate, that he lacked the good judgment that is the primary qualification for the job. If the Democratic Party loses this election, then it should forever concede the presidency.
Ouch! I read this magazine for the same reason I watch Fox News. To upset my own comfortable ideologies. That's the trouble with us liberals -- we're always fretting about being fair, when, according to Harper's Roger Hodge we're just a big bunch of conflict-avoidant pussies.
Conflict in politics is not a metaphor, and as with any fight, the audience is likely to get involved. That is the essence of politics. A campaign that decides in advance that voters are tired of negative campaigning, that they are sick of partisan attacks and will respond only to positive messages, has stupidly left the field of battle. The people who truly dislike political combat are presumably among the 95 million who do not vote. Senator Barack Obama, a sophisticated and intelligent man with sophisticated and intelligent advisers, promises to change Washington, to eliminate the tone of partisan rancor, to foster a new spirit of brotherhood and cooperation. Poor lamb, he wishes to lie down with lions. But the Kingdom has not come.
Unfortunately, the sovereign voter can do little, on his own, to remedy the situation, especially if he happens not to live in Florida or Ohio. Yes, he can make a campaign contribution, a slightly more effective form of voting, but unless the Obama campaign decides to wage a more creative and destructive war, casting monetary ballots remains an empty gesture. (Of course one can also join the battle personally, perhaps by repeating the rumors about John McCain’s Alz heimer’s meds or the Sarah Palin sex tape.) Ultimately, we return to the problem of political will, to the Democratic Party, to the commitment of its party bosses to prevail, finally, in this election.
We can hope for change, that the Republicans will make some fatal error, or that Obama’s party will fight hard enough to persuade a decisive number of “low information” voters that John McCain is not only a liar but a menace to our children’s future. Recent precedents, however, are not encouraging. The Republican Party lied its way through eight years of criminal misrule while Democrats mostly just cowered in a back room. Now, faced with a clumsy deception about whether Sarah Palin sought an earmark for a small town in Alaska, Obama exclaims, “Come on! I mean, words mean something, you can’t just make stuff up.” Oh, yes, Barack, we can.
In the same issue that suggests we dirty our hands by calling John McCain a liar and the Bush administration's "misrule" criminal, we read that Obama is a detached blank screen upon which voters can project any quality they like (or dislike) because . . . well . . . his mother was lonely and so is he:
Obama wants to believe in the common good as a way of providing a fullness to experience that avoids the slide into nihilism. But sometimes I don’tknow if he knows what belief is and what it would be to hold such a belief. It all seems so distant and opaque. The persistent presence of the mother’s dilemma—the sense of loneliness,doubt, and abandonment—seems palpable and ineliminable. We must believe, but we can’t believe. Perhaps this is the tragedy that some of us see in Obama: a change we can believe in and the crushing realization that nothing will change.
This is usually the point at which my own McCain-supporting mother breaks in with "honey, you know, you can think too much." And after years, decades really, of finding this refrain irritating, I finally agree with her about the thinking part if not about her taste in Presidential candidates.
Like the Obama caricatured in this month's Harpers as an ineffective dreamer as intent on replacing his deceased mother's lack of faith with liberal-Christian-do-gooding as Oliver Stone suggests "W" was intent on finally pleasing Daddy, I simply choose to have faith in the stated values of the Democratic party. I continue to believe that over time, we can do better as a nation through consensus and problem-solving, collaboration and compromise, than we can by adopting the tactics of the world's strong-arm leaders and disciples of discord.
The Good News
Assuming that the guy I think Obama is -- highly educated, articulate, and idealistically dedicated to serving the common welfare -- actually exist on the political scene (and I will not give up this faith any more readily that others would renounce their own religions) I believe them to be riding the bow-wave of transformation. I have staked my professional life on this faith in my fellows' ability to work toward the common good, abandoning the extremely lucrative practice of legal battle in exchange for the far less financially rewarding practice of collaborative negotiated conflict resolution.
Who are the real cowards here and who the heroes? People who refuse to negotiate face-to-face "without pre-condition" ("we won't discuss settlement unless they're willing to put $10 million on the table first") and without the protection of several layers of legal counsel? Or those who are willing to test the rectitude of their "position" by sitting across a table with their opponent to frankly discuss their mutual role in whatever commercial or personal catastrophe flowed from the intersection at which their (mis)fortunes collided?
So I will continue to brave reading Harpers (which discourages me) and risk the challenge to my world view of Fox News commentary (which so often enrages me) on the off-chance that my religion -- tolerance; compassion; collective effort; empathy and the like, has more staying power than the religion of hate; discord; and, denial.
And I will also continue to believe that none of us could ever possibly be right.
The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to: (1) recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.
Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.
But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.
As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.
The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.
We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.
Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.
(totally unrelated photo; just getting my iPhone photos from Paris in the mix)
But what a Blawg Review Diane has given us. Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day. And don't expect Diane to limit herself to mediation. Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said.
Earlier this week I was asked the following question by a concerned General Counsel: how can we help our employees grapple with on-the-job justice issues without leading them to believe that our proposed solutions are untrustworthy.
Our company spends an inordinate amount of time explaining disability, workers comp and federal employment law to employees who misunderstand what their rights are, or do not give us the right information to help them get the help they need.
Of course, we are the big bad employer, so any information we give them is suspect. I have considered hiring a social worker as a case manager/advocate for these people, but that position would just be interpreted as another tool of the evil employer out to keep them out of work/make them go back to work in violation of their best interests, so it would be a waste.
We would LOVE if there was an independent agency that would assign a case worker, not to work as an attorney for the employees, but as an advocate to help them understand their rights and access the system correctly. I would gladly pay to fund this service.
Then I realized, if the employer, or a group of employers, funded this employee advocacy agency, employees would think the advocates were biased toward the employers and were just in a sham relationship to deprive them of their rights to serve the interest of the employer.
Now, I do not believe this would be the case. I trust in the professionalism and ethics of mediators, but I do believe that uneducated and single users would form that opinion. Professor Murray's opinion reinforces that conclusion, even though at first glance, he would seem to be "educated."
But, is bigger government the answer. My experience with the EEOC is that they want employers to do MORE than is required by law. We have had success with mediators after complaints are filed, but my goal is to get the employees what they need when they need it, not have a mediator help us fix it after time has run out.
What are your thoughts on this?
The Problem as Cognitive Bias
I've highlighted the sections of the GC's email that raise the problem of reactive devaluation -- our tendency to devalue and resist anything our "opponent" offers to us. Most attorneys were taught reactive devaluation as first year associates -- "if opposing counsel wants it, you don't."
One can be led to conclude that any proposal offered by the “other side”—
especially if that other side has long been perceived as an enemy—must be
to our side’s disadvantage, or else it would not have been offered. Such an
inferential process, however, assumes a perfect opposition of interests, or in
other words, a true "zero-Sum" game, when such is rarely the case in real-
world negotiations between parties whose needs, goals, and opportunities
are inevitably complex and varied.
Combatting Reactive Devaluation in the Workforce
Cognitive biases such as reactive devaluation are not random artifacts of an irrelevant evolutionary past. They are built-in protections against deception by our friends as well as by our adversaries. There is only one lasting protection against this bias -- to engage in clear communication with your work force on a daily basis concerning the mutual and complementary interests of employer and employee; to express your belief in your interdependence in word and deed, i.e., by engaging in dialogue and activities demonstrating benevolent intent; and to willingly listen to one another's complaints, understanding that one man's benevolence is another's bondage.
What's a diagnostic question? One that would reveal our bargaining partners' needs, desires, priorities, preferences and motivations. I'm no employment expert, but I have participated in the management of law firm personnel as a partner and have been managed by others throughout my professional life. As a full-time mediator for more than four years, I have also asked hundreds if not thousands of diagnostic questions to help litigation adversaries understand one another's motivations, to reframe those motivations as non-threatening, or, at a minimum, the result of ordinary human fallibility, and to explore the parties' mutual and complementary interests. I also remind my parties and myself as often as possible that you cannot drill a hole in the other guy's side of the boat without making your own side sink to the bottom of the lake as well.
Empowerment, according to [the fathers of the transformative paradigm] Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means enabling the parties to see and understand the other person's point of view--to understand how they define the problem and why they seek the solution that they do.
(Seeing and understanding, it should be noted, do not constitute agreement with those views.)
Often, empowerment and recognition pave the way for a mutually agreeable settlement, but that is only a secondary effect. The primary goal of transformative medition is to foster the parties' empowerment and recognition, thereby enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view. This approach, according to Bush and Folger, avoids the problem of mediator directiveness which so often occurs in problem-solving mediation, putting responsibility for all outcomes squarely on the disputants.
Rights and Remedies vs. Interests
It's not surprising that employees just don't seem to "get" the legal rights and remedies company HR departments keep trying to explain to them. They don't make any sense absent legal training.
People who are not lawyers simply don't understand why there is a legal remedy for one type of injustice but none for another that feels just as unfair. Let's take our patchwork of Constitutional protections for employees. As an life-long ACLU member, I'd be the last to denigrate them. But we have to understand that we've created a "fair" workplace for only some of our citizens, not all of them.
Women, people over 40, under-represented minorities and the like, can take the square peg of their unfair work treatment and cram it into the round hole of a viable cause of action. If an employee does not want to cry "gender discrimination" even though she's being treated badly on the job, or if he has no bundle of legal rights to assert, there is no remedy for a termination that feels (yes, feels) wrongful. Remember, it took us lawyers quite some time for the legal worldview to "click" and we were immersed in it, drilled in it and eager to learn it. Employees just want someone to listen to their problem and to help them resolve it. They don't want to know the wage-hour laws, the need to exhaust administrative remedies with the EEOC and the like.
Employees and employers have people problems with justice issues, not legal problems with "irrelevant" emotional responses that get in the way of resolution.
Expressed emotion is the key, not the lock.
It is we -- the lawyers -- who legalize and monetize injustice, shutting our clients down when they try to explain what the problem really is because it's irrelevant to the legal solution.
If you're old enough to remember the lingering moment in United States history when our educational institutions went from white, on the one hand, to multi-hued, on the other, you'll know intimately how you deal with reactive devaluation. You get to know one another. Do this andKaneesha is not "black" or "African American" but a well-known acquaintance or dear friend. The same is true for employers and employees. Create activities in which (alleged) oppressor and (purported) oppressed come together to engage in mutually productive (Habitat for Humanity springs to mind) and mutually enjoyable (basketball? girls nights out?) activities. At the holiday party, don't relegate the "underlings" to their own table. Walk your talk. Destroy the hierarchy everywhere except where it's actually necessary to get work done.
I can't describe the benefits of interest-based resolutions over rights-based solutions any better than does my mentor and friend, Ken Cloke, in his brilliant new book -- Conflict Revolution.
[r]ights-based processes . . . generate winners and losers, undermine relationships, and result in collateral damage, . . . Since rights rely on rules, change is discouraged, though not prevented, and conflicts are settled rather than prevented or resolved.
This is not easy work. As a mediator, I know how elusive Cloke’s “outcomes” can be
-- outcomes [in which] both sides win and no one loses, when former adversaries en-
gage in meaningful dialogue and reach satisfying agreements, and when power is exercised with and for each other by jointly solving common problems.
I have, I am afraid, given my GC a problem rather than a solution. More accurately, I've suggested an altered way of looking at the problem without a great deal of detail about crafting a solution. Not only could people better versed in employee relations write books on this topic, they have. Therefore, I'm asking my good ADR blogging buddies to please chime in here for you.
Why was this an echt academic moment? Because the course I was taking from Joe -- "Ideologies of Mediation" -- had, before that moment, been suggesting that all ideologies interfere with durable, party-satisfying resolutions. Now it seemed the